FAQ – Power of Attorney
Power of Attorney
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A power of attorney is an important and powerful legal document as it is authority for someone to act in someone else’s legal capacity. It should be drawn by a lawyer to meet the person’s specific circumstances. Pre-printed forms may fail to provide the protection desired.
A Power of Attorney must be signed by the principal and by two witnesses to the principal’s signature, and a notary must acknowledge the principal’s signature for the Power of Attorney to be properly executed and valid under Florida law. There are exceptions for military Powers of Attorney and for Powers of Attorney created under the laws of another state.
The “principal” is the maker of the Power of Attorney – the person who is delegating authority to another. This is the person who is allowing someone else to act on his or her behalf.
The “agent” is the recipient of the Power of Attorney – the party who is given the power to act on behalf of the principal. The agent is sometimes referred to as an “attorney-in-fact”. The term “attorney-in-fact” does not mean the person is a lawyer.
As used “herein” a “third party” is a person or institution with whom the agent has dealings on behalf of the principal. Examples include a bank, a doctor, the buyer of property that the agent is selling for the principal, a broker, or anyone else with whom the agent must deal on behalf of the principal.
A “Limited Power of Attorney” gives the agent authority to conduct a specific act. For example, a person might use a Limited Power of Attorney to sell a home in another state by delegating authority to another person to handle the transaction locally through a “limited power of attorney.” Such a power could be “limited” to selling the home or to other specified acts.
A “General Power of Attorney” typically gives the agent very broad powers to perform any legal act on behalf of the principal. A specific list of the types of activities the agent is authorized to perform must be included in the document.
A Power of Attorney terminates if the principal becomes incapacitated, unless it is a special kind of Power of Attorney known as a “Durable Power of Attorney.” A Durable Power of Attorney remains effective even if a person becomes incapacitated. However, there are certain exceptions specified in Florida law when a Durable Power of Attorney may not be used for an incapacitated principal. A Durable Power of Attorney must contain special wording that provides the power survives the incapacity of the principal. Most Powers of Attorney granted today are durable.
Yes. The principal must understand what he or she is signing at the time the document is signed. The principal must understand the effect of a Power of Attorney, to whom he or she is giving the Power of Attorney and what property may be affected by the Power of Attorney.
Any competent person 18 years of age or older may serve as an agent. Agents should be chosen for reliability and trustworthiness. Certain financial institutions with trust powers may also serve as agents.
If the Power of Attorney was properly executed under the other state’s laws, then it may be used in Florida but its use will be subject to Florida’s Power of Attorney Act and other state laws. The agent may only act as authorized by Florida law and the terms of the Power of Attorney. There are additional requirements for real estate transactions in Florida and if the Power of Attorney does not comply with those requirements its use may be limited to banking and other non-real estate transactions. The third person may also request an opinion of counsel that the Power of Attorney was properly executed in accordance with the laws of the other state.
Powers & Duties of Agent
An agent may perform only those acts specified in the Power of Attorney and any acts reasonably necessary to give effect to the specified acts. If an agent is unsure whether he or she is authorized to do a particular act, the agent should consult the lawyer who prepared the document or other legal counsel.
Two types of acts may be incorporated by a simple reference to the statutes in the Power of Attorney – the “authority to conduct banking transactions as provided in section 709.2208(1), Florida Statutes” and the “authority to conduct investment transactions as provided in section 709.2208(2) Florida Statutes.” When either of these phrases is included in the Power of Attorney, all of the acts authorized by the referenced statute may be performed by the agent even though the specific acts are not listed in the Power of Attorney itself.
Yes. If the Power of Attorney has been executed with the formalities of a deed and authorizes the sale of the principal’s homestead, the agent may sell it. If the principal is married, however, the agent must obtain the authorization of the spouse.
There are a few actions that an agent is prohibited from doing even if the Power of Attorney states that the action is authorized. An agent, unless also a licensed member of The Florida Bar, may not practice law in Florida. An agent may not sign a document stating that the principal has knowledge of certain facts. For example, if the principal was a witness to a car accident, the agent may not sign an affidavit stating what the principal saw or heard. 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. If the principal was under contract to perform a personal service (i.e., to paint a portrait or provide care services), the agent is not authorized to do these things in the place of the principal. Likewise, if someone had appointed the principal to be trustee of a trust or if the court appointed the principal to be a guardian or conservator, the agent may not take over these responsibilities based solely on the authority of a Power of Attorney.
While the Power of Attorney gives the agent authority to act on behalf of the principal, an agent is not obligated to serve. An agent may have a moral or other obligation to take on the responsibilities associated with the Power of Attorney, but the Power of Attorney does not create an obligation to assume the duties. However, once an agent takes on a responsibility, he or she has a duty to act prudently. (See Financial Management and the Liability of an Agent).
Yes. Agents must meet certain standards of care when performing their duties. An agent is looked upon as a “fiduciary” under the law. A fiduciary relationship is one of trust. If the agent violates this trust, the law may punish the agent both civilly (by ordering the payment of restitution and punishment money) and criminally (probation or jail). The standards of care that apply to agents are discussed under Financial Management and the Liability of an Agent.
Using the Power of Attorney
The Power of Attorney is effective as soon as the principal signs it. However, a Durable Power of Attorney executed prior to Oct. 1, 2011 that is contingent on the incapacity of the principal (sometimes called a “springing” power), remains valid but is not effective until the principal’s incapacity has been certified by a physician. Springing Powers of Attorney may not be created after Sept. 30, 2011.
The principal may hold the Power of Attorney document until such time as help is needed and then give it to the agent. Often, the lawyer may fulfill this important role. For example, the principal may leave the Power of Attorney with the lawyer who prepared it, asking the lawyer to deliver it to the agent under certain specific conditions. Because the lawyer may not know if and when the principal is incapacitated, the principal should let the agent know that the lawyer has retained the signed document and will deliver it as directed. If the principal does not want the agent to be able to use the Power of Attorney until it is delivered, the Power of Attorney should clearly require the agent to possess the original because copies of signed Powers of Attorney are sufficient for acceptance by third parties.
The agent should review the Power of Attorney document carefully to determine what authority the principal granted. After being certain that the Power of Attorney gives the agent the authority to act, the Power of Attorney (or a copy) should be taken to the third party (the bank or other institution, or person with whom you need to deal). Some third parties may ask the agent to sign a document such as an affidavit, stating that the agent is acting properly. (The agent may wish to consult with a lawyer prior to signing such a document.) The third party should accept the Power of Attorney and allow the agent to act for the principal. An agent should always make it clear that he or she is signing documents on behalf of the principal.
If the Power of Attorney was lawfully executed and it has not been revoked, suspended or terminated, third parties may be forced to honor the document. The third party is required to give the agent a written explanation of why they are refusing to accept the Power of Attorney within a reasonable time after it is presented to the third party.
Under some circumstances, if the third party’s refusal to honor the Power if Attorney causes damage, the third party may be liable for those damages and even attorney’s fees and court costs. Even mere delay may cause damage and this, too, may be actionable. It is reasonable, however, for the third party to have the time to consult with a lawyer or an internal legal department about the Power of Attorney. Delay for more than a short period may be unreasonable. Upon refusal or unreasonable delay, consult an attorney.
Third parties are often concerned whether the document is valid. They do not know if it was executed properly or forged. They do not know if it has been revoked. They do not know if the principal was competent at the time the Power of Attorney was signed. They do not know whether the principal has died. Third parties do not want liability for the improper use of the document. Some third parties refuse to honor Powers of Attorney because they believe they are protecting the principal from possible unscrupulous conduct. If your Power of Attorney is refused, talk to your attorney.
A third party is authorized by Florida law to require the agent to sign an affidavit (a sworn or an affirmed written statement), stating that he or she is validly exercising the authority under the Power of Attorney. If the agent wants to use the Power of Attorney, the agent may need to sign the affidavit if so requested by the third party. The purpose of the affidavit is to relieve the third party of liability for accepting an invalid Power of Attorney. As long as the statements in the affidavit are true at that time, the agent may sign it. The agent may wish to consult with a lawyer prior to signing it. (You may find a sample Affidavit of Agent at the end of this booklet.)
A third party may also make a reasonable request for an opinion of counsel as to any legal matter concerning the Power of Attorney, including its proper execution under the laws of another state. A third party may request a certified English translation if any part of the Power of Attorney is in a language other than English.
Yes. The agent may hire accountants, lawyers, brokers or other professionals to help with the agent’s duties, but may generally not delegate his or her responsibility as agent. The Power of Attorney was given by the principal to the agent and the agent does not have the right to transfer that power to anyone else. It is important that the agent keep in mind his or her fiduciary duties when hiring professionals to help. The agent is allowed to delegate investment responsibility if the requirements of Florida Statutes section 518.11 are followed by the agent, unless the Power of Attorney prohibits such a delegation.
Relationship of Power of Attorney to Other Legal Instruments
An executor, termed a “personal representative” in Florida, is the person who takes care of another’s probate estate after that person dies. An agent may only take care of the principal’s affairs while the principal is alive. A personal representative may be named in a person’s will and is appointed by the court to administer the estate.
Like a Power of Attorney, a trust may authorize an individual (the “trustee”) to act for the maker of the trust during the maker’s lifetime. Like an agent, the trustee may manage the financial affairs of the maker of the trust. A trustee only has power over an asset that is owned by the trust. In contrast, an agent may have authority over all of the principal’s non-trust assets. Another important distinction is that a trustee may continue acting for the maker of the trust after the maker of the trust dies. In contrast, the Power of Attorney expires upon the death of the principal. Whether a trust or an agent is the most appropriate tool for a specific situation is a question that should be addressed to an attorney.
If no less restrictive appropriate alternative is available, then a guardian may be appointed by the court for a person who no longer can care for his or her person or property. A person who has a guardian appointed by the court may not be able to lawfully execute a Power of Attorney. If an agent discovers that a guardian has been appointed prior to the date the principal signed the Power of Attorney, the agent should advise his or her lawyer. If a guardianship court proceeding is begun after the Power of Attorney was signed by the principal, the authority of the agent is automatically suspended until the petition is dismissed, withdrawn or otherwise acted upon. The law requires that an agent receive notice of the guardianship proceeding. If a guardian is appointed, the Power of Attorney is no longer effective unless it is a Durable Power of Attorney and the court allows the agent to continue to exercise certain powers. A power to make health care decisions, however, is not suspended unless the court specifically suspends this power. If the agent learns that guardianship or incapacity proceedings have been initiated, he or she should immediately consult with a lawyer.
Yes. If the alleged incapacitated person executed a valid Durable Power of Attorney prior to his or her incapacity, it may not be necessary for the court to appoint a guardian since the agent already has the authority to act for the principal. As long as the agent has all necessary powers, it may not be necessary to file guardianship proceedings and, even when filed, guardianship may be averted by showing the court that a Durable Power of Attorney exists and that it is appropriate to allow the agent to act on the principal’s behalf.
Health Care & The Power of Attorney
A declaration of living will specifies a person’s wishes as to the provision or termination of medical procedures when the person is diagnosed with a terminal condition, has an end-stage condition, or is in a persistent vegetative state. A living will and a health care surrogate designation are termed “health care advance directives” because they are made in advance of incapacity and need. If a person is unable to understand or unable to communicate with a doctor, a living will is a legally enforceable method of making sure the person’s wishes are honored. Whether a person has a living Will, a person’s agent may make health care decisions if the Durable Power of Attorney specifically gives this right.
A Health Care Surrogate Designation is a document in which the principal designates someone else to make health care decisions if the principal is unable to make those decisions. Unlike a Power of Attorney, a health care surrogate decision-maker has no authority to act until such time the attending physician has determined the principal lacks the capacity to make informed health care decisions. (In instances where the attending physician has a question as to whether the principal lacks capacity, a second physician must agree with the attending physician’s conclusion that the principal lacks the capacity to make medical decisions before a surrogate decision-maker’s authority is commenced.) Many medical providers prefer a designation of health care surrogate for health care decisions because the document is limited to health care. However, a Durable Power of Attorney specifically for health care may enable the agent to assist the principal in health care decisions even though the principal may not completely lack capacity.
Termination of the Power of Attorney
The authority of any agent under a Power of Attorney automatically ends when one of the following things happens: (1) the principal dies, (2) the principal revokes the Power of Attorney, (3) a court determines that the principal is totally or partially incapacitated and does not specifically provide that the Power of Attorney is to remain in force, (4) the purpose of the Power of Attorney is completed, or (5) the term of the Power of Attorney expires. In any of these instances, the Power of Attorney is terminated. If, after having knowledge of any of these events, a person continues to act as agent, he or she is acting without authority.
The authority of an agent under a Power of Attorney automatically ends when one of the following things happens: (1) the agent dies, (2) the agent resigns or is removed by a court, (3) the agent becomes incapacitated, or (4) the filing of a petition for dissolution of marriage if the agent is the principal’s spouse unless the Power of Attorney provides otherwise.
The revocation must be in writing and may be done by a subsequent Power of Attorney. Notice should be served on the agent and any other party who might rely on the power. The notice should be served either by any form of mail that requires a signed receipt or by certain approved methods of personal delivery. Special rules exist for serving notice of revocation on banks and other financial institutions. Consult with your lawyer to be sure proper procedures are followed.
If a court proceeding to determine the principal’s incapacity has been filed or if someone is seeking to appoint a guardian for the principal, the Power of Attorney is automatically suspended and an agent must not continue to act. The power to make health care decisions, however, is not suspended unless the court specifically suspends this power.
Authority as agent has been suspended because guardianship proceedings are pending for the principal. Now there is an emergency but no guardian has been appointed yet. What now? The agent may ask the court for special permission to handle the emergency even though the Power of Attorney remains otherwise suspended. Contact your lawyer.
Financial Management & The Liability of an Agent
An agent is a fiduciary and as such has multiple duties when acting for the principal. These include an overriding duty to do only those acts authorized by the Power of Attorney, and when performing those acts to act in accordance with the principal’s reasonable expectations, to act in the principal’s best interest, and to attempt to preserve the principal’s estate plan. The preservation of the estate plan is dependent on a number of factors, including the agent’s knowledge of the plan and the needs and desires of the principal. If the agent assumes responsibility for the principal’s investments, the agent has a duty to invest and manage the assets of the principal as a prudent investor. This standard requires the agent to exercise reasonable care and caution in managing the assets of the principal. The agent must apply this standard to the overall investments and not to one specific asset. If an agent possesses special financial skills or expertise, he or she has an obligation to use those skills. The agent is required to keep careful records and may be required to provide an accounting. Everything the agent does for the principal should be written down, and the agent should keep all receipts and copies of all correspondence, and consider logging phone calls so if the agent is questioned, records are available. Agents should consult with lawyers to be sure they understand all of the duties applicable to them.