Florida Durable Power of Attorney
If you are already familiar with a general power of attorney form, we continue the discussion to say that among the different types of power of attorney documents that can be created between two parties, the Florida durable power of attorney form is the most commonly used and most powerful. A durable POA is a general power of attorney that contains a special “durability” clause.
If the grantor (the person assigning someone else to take care of the legal or formal aspects of their lives for any reason) were to become physically incapacitated or mentally incompetent while the agent (the person that has agreed to take care of their affairs) has a power of attorney document that is in effect, the provision of durability allows the agreement to stay in effect.
Why Create a Durable POA in Florida
This is why the Durable POA is considered the best Power of Attorney form in Florida. In all instances (with the exception of the healthcare power of attorney) of the power of attorney documents between two parties, the arrangement becomes void in the event of the grantor’s incapacitation. The purpose of the durable power of attorney is to allow the agent to continue making legal decisions on the grantor’s behalf up to the grantor’s death.
The various other POA agreements are considered a Nondurable Power of Attorney, which means they become ineffective in case of the grantor’s incapacitation or death. They are usually less sweeping in the scope of authority. The durable POA has explicitly been intended for this type of case.
Commonly, a durable power of attorney agreement would be to prepare a Medical Power of Attorney for the possibility that you might become physically incapacitated or mentally incompetent due to an accident or chance of serious illness (like beginning chemotherapy or traveling to a harsh climate, for instance) so in this regard, it has to be “durable” and be effective past your incapacitation to be of any use.
Choosing the Agent
Many people do not understand the power of attorney documents because you do not have to choose a lawyer to be your agent. A lawyer does not even have to be present at the signing or execution of the document (only a registered notary does). However, it is worth noting that the person you select to act on your behalf is a person you trust implicitly.
The friend, relative, or even business you select to be your agent will have the power to act on your behalf regarding your health care (such as a Medical Power of Attorney Document) or financial decisions. You must choose an agent who will not abuse the powers you formally grant them and will act in your best interests.
You can make the Power of Attorney form broad to encompass everything, or with a Florida Limited Power of Attorney, you can make it so that specific the agent can only pick up your postal mail (for example).
An attorney-in-fact (agent) in Florida is only held responsible for intentional misconduct, not for bad decisions.
After 2011, the State of Florida enacted even more safeguards for the grantor of the POA agreement. For one, they abolished the Springing Power of Attorney document. Also, remember there is often no financial or any other type of reward for acting as an agent on your behalf to stem misconduct. Since you are often associated with the agent in some personal fashion, this is rarely the case. A healthcare power of attorney representative can make decisions regarding your life-extending procedures while having no decision-making powers over your financial arrangements. An estate power of attorney agent can access all of your personal and business accounts (even your safe deposit box) on your behalf and yet have no say over your well-being.
How the 2011 Legal Changes Affect Your Durable Power of Attorney form in Florida
The durable power of attorney Florida state-specific version changed as of October 1, 2011. Due to the changes in the law, a POA signed and executed before October 1, 2011, may or may not be enforceable. What does the new law say, and how does it affect durable power of attorney documents written or executed in Florida?
Florida’s legal changes that went into effect on 10/1/2011 state that POA forms signed before this date are legally valid but do not come into effect until a physician certifies that the principal is disabled. The October 1, 2011 law makes all durable power of attorney forms signed after this date immediate. Springing POA documents thus became invalid and not legally enforceable if signed after 10/1/2011. While older POA forms are still valid, additional controls prevent their abuse while new ones are no longer allowed. Using a Florida durable POA agreement ensures that the document is valid under current law.
The durable power of attorney state-specific version must reference section 709.2208(1) of Florida statutes to allow the agent to perform banking transactions for the principal. The POA form should reference Florida statute section 709.08(2) for someone to be allowed to conduct investment transactions for the principal.
Changes to Powers
Under the new law, this phrase in your POA does not automatically give your agent fiduciary powers. As of October 1, 2011, the principal must specifically designate the powers the agent will have. The agent cannot sell your home, manage your investments, or transfer assets to your relatives unless you specifically give them these powers in the durable POA form. These powers are granted by initialing those powers on the durable power of attorney form.
If you have an existing durable POA form, you will need to get a new one to grant this authority to an agent in the future. Many durable POA forms state that an attorney-in-fact can do anything not otherwise mentioned in the legal document. In short, Florida no longer allows you to grant superpowers to an agent with a POA.
What Else Does the 2011 Law Change?
The 2011 law made photocopies of durable power of attorney forms as valid as the original form. This does add an extra layer of diligence when you want to revoke a POA since you have to find and destroy all copies of the document in addition to the original one. List all locations where your Florida durable POA form is kept to aid in its retrieval if you want to revoke it later. If you move to Florida while acting as an agent on behalf of someone else, you will want to speak with an attorney to verify its validity.
What If I Have a POA from Another State?
A POA form created and signed in a state other than Florida can still be used if executed properly per that state’s laws. However, its execution will be subject to Florida law under the Power of Attorney Act of Florida. If you have moved to Florida and are of sound mind, it is best to draft a new Durable Power of Attorney form that you know will be 100% valid.