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A Florida power of attorney (POA) is a legal tool that allows someone you've designated to conduct financial transactions or make healthcare decisions on your behalf in Florida. They are usually set up to protect you, your spouse, and your loved ones in the instance you become incapacitated. A power of attorney is a powerful legal document as it gives someone the ability to act in your legal capacity, and it comes with certain rights and responsibilities. In order to meet your specific requirements under Florida law, it should be written by a lawyer so that it provides the protections you need.
Types of Powers of Attorney
There are a few different kinds of powers of attorney for financial transactions. In all of them, a person (the "agent") is given the authority to act on behalf of an individual (the "principal").
- General Power of Attorney: grants the agent broad powers to conduct all financial transactions, such as banking, real estate transactions, and tax issues.
- Limited or Special Power of Attorney: this limits the authority of the agent to a single transaction, to specific kinds of transactions, or to act within a set period of time.
- Durable Power of Attorney: while some POAs terminate when the principal is incapacitated, this type does not.
- Springing Power of Attorney: this only becomes effective if the principal becomes incapacitated, which is no longer an available option in Florida.
- Enhanced Durable Power of Attorney: This is an especially powerful version of a general durable power of attorney, prepared by experienced Florida elder law attorneys, with special considerations for long-term care planning.
Who needs a Florida Power of Attorney?
Everyone over the age of 18 could potentially benefit from a power of attorney. In healthcare POAs (otherwise known as health care advance directives), someone is appointed to make healthcare decisions on your behalf if you become incapacitated. Because accidents or illness leading to incapacitation are often unexpected, it is important to have an advance directive set up before any adverse event occurs. Creating one is similar to getting insurance — the hope is that you will not have to use it, but it exists to protect you and your wishes in case something bad does occur.
Financial powers of attorney are not only important in the cases of unexpected incapacitation, they can also be incredibly useful in financial transactions. They allow you to appoint someone to sign documents on your behalf so that you do not have to be present. The Florida POA will enable your agent to sell a car, home, or property on your behalf, as well as access bank accounts, sign contracts, or take care of other financial transactions for you.
What are the Legal Requirements for a Power of Attorney in Florida?
Financial Powers of Attorney in Florida are controlled by Part II of Chapter 709 of the Florida Statutes. Florida law requires the POA to be signed by the principal and two witnesses to the signature before a notary in order for it to be valid in the state. All parties must sign in the presence of each other in order for the POA to be valid.
Other states have different requirements for POA, and while an out-of-state power of attorney may be valid under Florida law it will depend on the circumstances. Thus, it is safest to create your POA in Florida to ensure that it is legal under Florida law or to avoid its use being limited in certain financial transactions.
Florida Statutes Chapter 765 Part II includes a simple form for healthcare advance directives. However, if you want to ensure that a healthcare POA meets your specific circumstances, it is important to consult an attorney in setting one up. You can also have an attorney create a power of attorney that includes both financial transactions and healthcare directives.
Do I need a Power of Attorney even if I'm Married?
Many people think that their spouse is automatically empowered to act on their behalf. This is false. Spousal rights are less broad under a marriage contract than you might think. In the event of incapacitation due to an accident, aging, or illness, the non-incapacitated spouse does not have full authority to sell joint assets (such as your home, cars, or other property where the titles are held in both names). A Florida power of attorney will grant one spouse the authority to make decisions in the event the other spouse is incapacitated. In order to protect your joint assets, a durable power of attorney is a simple way to ensure that you or your spouse (or another appointed agent) will be easily able to handle your joint affairs if ever needed.
When Should I Set up a Power of Attorney?
No one likes to think of the instances where they will need a power of attorney. However, in order to protect yourself and your loved ones, it is safest to be proactive. Accidents that can result in incapacitation can happen anytime, and when they are least expected. Additionally, Florida law requires that the principal of a POA has the mental capacity to execute the document. If you or your loved one is already experiencing dementia or another mentally debilitating disorder, it may be too late to create a valid power of attorney. No matter your circumstances, a good lawyer can help you decide what to do and will help craft a power of attorney that will meet your needs.
Enhanced Durable Power of Attorney
A Florida Durable Power of Attorney allows you to designate who can make decisions for you should you be unable to make decisions for yourself. This decision-maker is referred to as your “agent” or “attorney in-fact.” Your agent is often empowered to sign your name on contracts, handle and access your finances and real estate, sometimes they can be authorized to create/amend trusts, or deal with insurance companies and apply for government benefits.
Why do we call our POA “enhanced?”
What is the difference between an Enhanced Durable Power of Attorney and an Ordinary Durable Power of Attorney?
First, it’s important to stress that a Durable Power of Attorney (DPOA or POA) is not a once-size-fits-all document. There is no such thing as a general durable power of attorney that empowers the agent / attorney in-fact to be able to do anything and everything. The POA must very specifically delineate what the agent can or cannot do. This is why canned documents found on the internet just won’t do.
As an elder-law / estate planning attorney, I firmly believe that an Enhanced Durable Power of Attorney is the single most important document you can sign.
A well drafted Florida POA is so important because of the following all-too-common scenario:
The spouse or adult child of a loved one comes to me for Medicaid Planning assistance on behalf of their loved one. Unfortunately, their loved one has recently had a stroke/heart attack/dementia progression or any other event that has created a situation where the loved one is cognitively unable to make decisions on his/her own. There is no previously-signed durable power of attorney (or there is an inadequately drafted DPOA).
Unfortunately, I then have to explain to the spouse or adult child that they will require an expensive guardianship proceeding in order to become empowered to make the decisions necessary to allow me to protect their loved one’s assets and apply for government benefits.
In essence – without a properly drafted enhanced durable power of attorney, my client’s family (and by extension the elder law attorney) becomes hamstrung and is unable to act.
Remember, when signing an Enhanced Durable Power of Attorney, you are not giving up your rights -- you are just picking a person (or people) who can step in and act for you now, and should you ever become unable to act for yourself. I often tell my clients: either you choose now, or it’s possible we’ll need to rely on a judge to choose later.
Why Ordinary Durable Power of Attorneys May Not be Sufficient
While regular DPOAs can be immensely helpful , elder law and Medicaid planning attorneys utilize special "enhanced" language focused on aging and long-term care issues.
Some provisions that an ordinary DPOA may not contain:
1) specific authorization for the agent(s) to create qualified income trusts.
- the general trust creation provisions found in regular DPOAs are not sufficient.
- sometimes the language is enough, but the proper section has not been initialed (which has been a requirement since 2011!)
2) authorization to apply for government benefits, such as Medicaid.
3) authorization (where desirable) for the agents to gift to themselves regular DPOAs often limit this ability authorization to sign admissions agreements for life care facilities; and authorization to apply for health and long-term care insurance benefits.
Consultant with an Experienced Florida Estate Planning Attorney Today
Powers of attorney are an important part of estate planning but they can be complicated to navigate alone. Working with an experienced estate planning attorney is a worthwhile decision when determining what you need to set up for your future. For further guidance in your estate planning process, consult with an experienced estate planning attorney today.