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Tips for Establishing Power of Attorney

Things to Know About Power of Attorney

What is a Power of Attorney?

As a probate attorney, I get asked many questions about estate planning, but also long-term care plans. I work with clients on preemptive measures such as creating a Power of Attorney. This is an important document assigning an agent the legal authority to act on the principal’s behalf. The agent could be making life-and-death decisions on your behalf, so choose someone who knows your desires and will respectfully see them out. Part of your estate and end-of-life care planning should be a Power of Attorney.

Power of Attorney grants the agent access to your bank accounts and gives them authority to set up a trust, handle financial transactions, and even sign contracts. Medical decisions are another critical aspect of this role, where they will be responsible for the direction of your treatments and procedures.

Types of Power of Attorneys

Different options are available when constructing a Power of Attorney here in Florida. You can set something up for a limited time or specific purpose or even assign complete authority for cases where you may be incapacitated and need someone there to speak on your behalf.  

Power of Attorney must be created within the constructs outlined in the Florida statutes to be valid. Power of Attorneys are executed within the constructs of Florida statute. When you create a Power of Attorney, you must use the language needed to grant the appropriate authority to the agent. First, you must decide the purpose of the Power of Attorney and which type will grant you the desired protections.

  • Medical Power of Attorney
  • Durable Power of Attorney
  • Limited Power of Attorney
  • General Power of Attorney

Can I Give Anyone Power of Attorney? 

Florida law states that any capable legal adult can be assigned as an agent in a power of attorney. This person will have ultimate decision-making over your medical care and financial matters, so it is vital you choose someone trustworthy and who understands your desires. Just because you know someone or are related to them doesn’t necessarily make them a good fit for this role.

Legal Requirements for Power of Attorney 

We strongly recommend consulting an experienced probate attorney to help guide you through this process. Florida Statute requires specific language and criteria for creating and executing a Power of Attorney. If done incorrectly, it could leave you vulnerable and unprotected. Our firm works with families every day to create long-term plans that work for them.

We understand the legal conditions and requirements necessary to create a Power of Attorney that protects you and grants the appropriate authority to your agent. The principal is the person who assigns someone, the agent, to act on their behalf.

Important Things to Know

  • A Power of Attorney goes into effect as soon as it is signed
  • Power of Attorney automatically terminates when the principal dies
  • Power of Attorney must be signed and witnessed by two people
  • It must be notarized
  • It can be updated or terminated at any time
  • An agent must be a legal adult capable of making decisions on your behalf
  • Power of Attorney must specify authority and define power over the principal

Although there is no specific rule that the agent cannot be a witness, it is not recommended.

Not 100% Authority

Being granted power of attorney does not give the agent absolute power over the principal; there are things they do not have the authority to do. This is considered a fiduciary role under the law, and with that, the agent has a moral obligation to carry out the duties as Power of Attorney prudently. If the agent abuses this power, they could face both civil and criminal liabilities. The expectation is that in all circumstances, the agent acts in the best interest of the principal and their estate.

Florida Law makes it clear that the following examples are things the agent cannot do on behalf of the principal:

  • An agent may not sign a document stating that the principal has knowledge of certain facts.
  • An agent may not vote in a public election on behalf of the principal.
  • An agent may not create or revoke a will or codicil for the principal.
  • An agent may not perform a personal service in place of the principal who was hired or contracted to do something.
  • An agent may not assume the responsibility of a trust or court-appointed guardianship that has been granted to the principal.

Selling the principal’s home is within the authority of the agent. However, if the principal is married, they must obtain authorization from the spouse.

Why You Should Create a Power of Attorney Today

Our firm has been helping families in our community for over 50 years. When it comes to estate planning and your end-of-life care planning, we have comprehensive knowledge and experience to protect you and your legacy. We can guide you through every step and develop a plan that works for you and your family. Schedule a free consultation today with our office at 386-255-1925.  

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