Power of Attorney
A Power of Attorney (POA) is a legal document that gives another person, called your agent, the legal authority to act on behalf. You, who are referred to as the “Principal,” give an agent the power to make decisions on your behalf. These decisions relate to your personal matters, such as legal, financial, and health issues. Your agent can make decisions regarding these matters without any permission from you.
A Power of Attorney and a Guardianship are similar tools that allow an agent to act on your behalf if you become incapacitated. With a Power of Attorney, you choose who you want to act for you. In a Guardianship proceeding, the court chooses who will act as guardian. In limited circumstances, a POA may be used as a less expensive alternative to a Guardianship.
WHAT ARE MY RIGHTS?
Once you sign a POA, it becomes effective immediately and not when you are incapacitated.
When you, as a Principal, sign and grant an agent as your Power of Attorney, you will give either general, durable, or limited authority to the agent.
A Limited Power of Attorney allows an agent to make decisions for a specific event or during a specific period of time. This type of POA restricts the scope of the agent’s activities. The Principal lists all the matters given to the agent such as the power to sign a lease, to sell a car, to access a U. S. Postal Office mailbox, or handle a tax matter.
A Durable Power of Attorney allows the agent to continue acting on the Principal’s behalf, even if the Principal becomes incapacitated. Individuals planning retirement care, for example, may grant a durable power of attorney to an agent, granting them the power to create or modify a trust, make a charitable gift, or modify a retirement plan.
A General Power of Attorney allows the agent to make a broad range of decisions on behalf of the Principal, but the POA may end when the Principal becomes incapacitated.
WHAT DO I NEED TO DO?
To grant a Power of Attorney, you:
- Must be at least 18 years of age;
- Must fully understand the provisions of the document (what it says and how it works);
- Must have two people witness your signature in the presence of each other and yourself; and
- Must have the document notarized.
A Power of Attorney may be changed (modified) or revoked (ended) by you at any time.
A Power of Attorney executed in another state, as described in that state’s law, may be honored in Florida. If you move from Florida to another state, consult with a licensed attorney in your new home state to determine if your Florida Power of Attorney will be accepted in your new state.
The “Principal” of a Power of Attorney document is the person who creates and owns the document. If you are creating a Power of Attorney, you are the Principal, or the person who is granting someone else power over your affairs.
The “Attorney-in-Fact” is the person or entity who is being given the authority to handle your affairs.
A Power of Attorney automatically ends when any of the following things happen:
- The Principal dies;
- The Principal revokes (ends) the Power of Attorney;
- A court determines that the Principal is totally or partially incapacitated or unable to make sound decisions and the Principal does not specifically state that the Power of Attorney is to remain in force after incapacitation;
- The purpose stated in the Power of Attorney is completed;
- The date range (also called a “term” that is stated of the Power of Attorney has passed; or
- Other circumstances, as allowed by law.
WHAT TO CONSIDER BEFORE TAKING ACTION?
A Power of Attorney (POW) is a very powerful document. Think before you sign.
Why do you want a POA? Why do you need a POA? What do you want your agent to do on your behalf? Is there an alternative available other than a POA? Whom do you trust to honor your wishes? Who is mentally capable of exercising your wishes? In bad times or financial crisis, will this person use this document to your financial detriment? Should you give your agent limited power or broad power?
Before drafting your Power of Attorney, ask the person you are choosing if they will uphold your desires and will accept the appointment of being your agent. Sometimes, a loved one will refuse to accept the appointment. Your agent does not have to reside in Florida.
Advance Directives: If a health care surrogate has been designated in writing, they have the authority to make medical and some mental health treatment decisions for you. Before you sign a Power of Attorney, please consult an attorney.
Jointly held assets: If you have joint assets with your desired Power of Attorney agent, then as a joint owner, they can act without your consent when making decisions about the assets you share. This will limit your financial hardship if your agent mishandles their agent powers.
Representative Payee: Appoint the person as your Social Security Representative Payee if handling your Social Security or veteran benefits is an issue.
Florida Power of Attorney Act (Florida Statutes, Chapter 709): http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&URL=0700-0799/0709/0709.html
Military Power of Attorney (10 U.S. Code § 1044b): https://www.law.cornell.edu/uscode/text/10/1044b
The Florida Guardianship Law (Florida Statutes, Chapter 744): http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&URL=0700-0799/0744/0744.html
The Florida Bar’s Florida Power of Attorney Pamphlet: https://www.floridabar.org/public/consumer/pamphlet13/
The American Bar Association’s Estate Planning FAQs (Power of Attorney): https://www.americanbar.org/groups/real_property_trust_estate/resources/estate_planning/power_of_attorney/