What is a Florida Power of Attorney?

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FLORIDA POWER OF ATTORNEY

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.

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.



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FAQ

Frequently Asked Questions

How do you get a power of attorney in Florida?
At its very basic level, a power of attorney needs to be signed in front of two independent witnesses and it needs to be notarized. In order to get the power of attorney document drafted, it is always best to work with an experienced estate planning attorney or elder care lawyer in order to make sure your rights and your best interests are always protected. Beware of free forms available on the internet, they are often faulty and problematic.
What does Durable Power of Attorney mean in Florida?
A “durable” power of attorney means that it lasts after someone becomes incapacitated. This is important so that whoever is given power of attorney, will be able to make decisions regarding the care of the other person, even if they are not able to speak their wishes themself.
Does a power of attorney give up my rights?
If you have a power of attorney, you still have rights to make your own decisions, however, the person you grant power of attorney to will also have the power to make these decisions.
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