A power of attorney is a legal document that gives someone the authority to make legal decisions on someone else’s behalf. A power of attorney creates a principal-agent relationship; the appointed person will act as an agent for the person (principal) who appointed them. A power of attorney can be executed for a variety of matters; they are most often created to give the agent financial or medical decision-making powers. A power of attorney can either have general, limited, or durable powers.

General Power of Attorney

A general power of attorney gives an agent broad power to make legal decisions on behalf of their principal. If the principal wishes to limit the agent’s power in any way, they will have to either refuse to initial some of the super powers, or they may specifically state powers they do not wish to convey in the power of attorney document. The agent’s power is otherwise only limited by the state of Florida in §709.2201 of the Florida Trust Code.

Limited Power of Attorney

A limited power of attorney gives an agent power to act on their principal’s behalf for certain specified matters. For example, you can appoint a limited power of attorney to lease a car for you. The limited power of attorney will have the power to make all decisions and transactions on your behalf that are necessary to find and lease the car for you. They do not have the power to instead decide to purchase, instead of lease, a car on your behalf. A limited power of attorney can only make legal decisions that are in the scope of what they were appointed for. These types of powers can be set to expire automatically after the transaction is completed or on a specific date.

Durable Power of Attorney

A durable power of attorney may be classified as either general or limited. What diversifies a durable power of attorney from the others is it authorizes the agent to act on your behalf even if you become incapacitated. This is the only type of power of attorney that remains effective in the event you become incapacitated. If you do not have a durable power of attorney, and you can no longer care for yourself or manage your affairs, a guardianship may be the only option. That is why these documents are so important.

When can an agent act on behalf of their principal?

According to §709.2108 of Florida Statutes, unless stated otherwise in the document, the agent can start making legal decisions for the principal as soon as the power of attorney document is signed. As soon as the document is signed, the agent is authorized to make any decisions that are within the scope of their power. Springing powers of attorney were eliminated in 2011.

§709.2109 of Florida Statutes states the power given under a power of attorney will terminate when:

(a) The principal dies;

(b) The principal becomes incapacitated, if the power of attorney is not durable;

(c) The principal is adjudicated totally or partially incapacitated by a court, unless the court determines that certain authority granted by the power of attorney is to be exercisable by the agent;

(d) The principal revokes the power of attorney;

(e) The power of attorney provides that it terminates;

(f) The purpose of the power of attorney is accomplished; or

(g) The agent’s authority terminates and the power of attorney does not provide for another agent to act under the power of attorney.

Who can act as a power of attorney in Florida?

Any competent person who is at least 18 years of age may act as a general, limited, or durable power of attorney in Florida. Keep in mind, however, that just because someone is eligible, does not mean they are the right power of attorney for you. When choosing your power of attorney, it’s important to appoint an individual you trust. Appointing a trusted person is critical because this person will have the power to make some of your most important legal decisions. There are numerous questions you can ask yourself when deciding who to choose to be your power of attorney. A few common questions to consider are:

  • Do you trust this person with your important life decisions?
  • Will this person always act in your best interest?
  • Will this person understand your needs?
  • Are you confident this person will maintain your trust?

It is also important to consider how close your appointee lives to you. It may be essential the agent can get to you quickly to make certain medical decisions on your behalf.

If you wish to execute a power of attorney, but do not wish for your agent to be able to act immediately, we sometimes use escrow agreements to maintain possession of the power of attorney document until certain conditions are met. No prudent person would act pursuant to an agents direction without a copy of the document.

Appointing a power of attorney can be a difficult task. If you have questions or would like assistance setting up a power of attorney, please contact us today.

Written by Alison Koukoulis and edited by Patrick D. Quarles

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