Power of Attorney

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 WHAT IS A POWER OF ATTORNEY IN FLORIDA?

A power of attorney is a legal document delegating authority from one person to another. In the document, the maker of the power of attorney grants the right to act on the maker’s behalf. What authority is granted depends on the specific language of the document. A person giving a power of attorney may make it very broad or may limit it to certain specific acts.

WHAT ARE SOME USES OF A POWER OF ATTORNEY?

A power of attorney may be used to give another the right to sell a car, home or other property. A power of attorney might be used to allow another to access bank accounts, sign a contract, make health care decisions, handle financial transactions or sign legal documents for the principal. A power of attorney may give others the right to do almost any legal act that the maker of the power of attorney could do, including the ability to create trusts and make gifts.

WHERE MAY A PERSON OBTAIN A POWER OF ATTORNEY?

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 or authority desired.

WHAT IS A “LIMITED POWER OF ATTORNEY”?

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. Such a power could be “limited” to selling the home or to other specified acts.

WHAT IS A “GENERAL POWER OF ATTORNEY”?

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.

WHAT IS A “DURABLE POWER OF ATTORNEY”?

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.

MUST A PERSON BE COMPETENT TO SIGN A POWER OF ATTORNEY?

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 the power of attorney is being given and what property may be affected by the power of attorney.

WHAT ACTIVITIES ARE PERMITTED BY AN 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 about authorization 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.

MAY AN AGENT SELL THE PRINCIPAL’S HOME?

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 also must obtain the authorization of the spouse.

WHAT MAY AN AGENT NOT DO ON BEHALF OF A PRINCIPAL?

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.

WHAT ARE THE RESPONSIBILITIES OF AN AGENT?

While the power of attorney gives the agent authority to act on behalf of the principal, an agent is not required 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, there is a duty to act prudently. (See “Financial Management and the Liability of an Agent.”)

IS THERE A CERTAIN CODE OF CONDUCT FOR AGENTS?

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.”

WHEN IS A POWER OF ATTORNEY EFFECTIVE? 

The power of attorney is effective as soon as the principal signs it. However, a durable power of attorney executed before 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.

MUST THE PRINCIPAL DELIVER THE POWER OF ATTORNEY TO THE AGENT RIGHT AFTER SIGNING OR MAY THE PRINCIPAL WAIT UNTIL SUCH TIME AS THE SERVICES OF THE AGENT ARE NEEDED?

The principal may hold the power of attorney document until such time as help is needed and then give it to the agent. Often, a 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.

HOW SHOULD THE AGENT SIGN WHEN ACTING AS AN AGENT? 

The agent will always want to add after his or her signature that the document is being signed “as agent for” the principal. If the agent signs only his or her own name, the agent may be held personally responsible for whatever was signed. As long as the signature clearly indicates that the document is being signed in a representative capacity and not personally, the agent is protected. Though lengthy, it is, therefore, best to sign as follows: Howard Rourk, as agent for Ellsworth Toohey. (In this example, Howard Rourk is the agent, and Ellsworth Toohey is the principal.)