Definition
A
power of attorney (POA) is a legal document which delegates authority of one
person (the principal) to another (the agent/attorney-in-fact). A
POA can be durable (not terminated by the later incapacity of the
principal) or nondurable (terminated by the later incapacity of the
principal). A POA not designated as “durable” will be considered nondurable. As
such, language should be included to indicate the later disability or
incapacity of the principal or the lapse of time shall not affect the validity
of the powers granted to the agent.
Requirements
A Power of Attorney must
be: (i) signed by a principal; (ii) with two subscribing witnesses; and (iii)
before a notary public. The principle must sign or initial next to
specific clauses in the document before an agent may exercise certain powers.
It is no longer sufficient for a principal to just sign at the end of a list of
powers in the document. However, general references (such as “my agent has
authority to conduct banking transactions”) will bestow broad powers on an
agent as it is no longer necessary to separately itemize each of the banking
transactions which an agent can now perform.
Qualifications,
Actions, and Resignation
An agent must be (i) a
natural person 18 years of age or older, or (ii) a financial institution that
has trust powers, maintains a place of business in Florida, and is authorized
to conduct trust business in Florida. A principal may designate one or more
agents and each agent now has full authority to act independently. An agent may
select only certain powers designated to them. Resignation can be affected by
notice to the principal, the principal’s guardian, or a successor agent.
Estate Planning
An agent’s authority
regarding a revocable trust must be specifically enumerated and may be
exercised by an agent only if (i) the principal signs or initials next to the
specific enumerated power, (ii) the authority to exercise is consistent with
the agent’s duties, and (iii) the exercise is not otherwise prohibited.
Authority
A photocopy, electronic
copy, or original power of attorney will now be honored by financial
institutions. An attorney-in-fact may initial litigation to contest a third
party’s refusal to honor the POA. The acceptance of copies may create situations
where the principal has revoked the agent’s authority, but the agent may
present a copy of the POA and continue to act on behalf of the principal
without his knowledge or consent. Therefore, the principal should notify others
when a POA has been revoked. Death of the principal extinguishing any existing POA.
Pre-October 2011 POAs
POAs often were drafted to become effective upon the occurrence of an event such as the disability or incapacity of the principal (i.e., springing POA). The Act eliminated such springing authority and now POAs are effective immediately upon signing. POAs executed prior to
October 1, 2011, may or may not still be valid. A qualified attorney can review
the POA to determine the extent of its enforceability, and whether the document
should be updated to comply with the latest requirements of Florida law.
A Power of Attorney can be a useful tool by allowing another to handle matters for you. Bear in mind, however, that this document grants very broad powers to the agent and care should be taken to designate a reliable, responsible person as your agent.
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Tim Martin is the owner/attorney of Martin Law Office, P.A., a solo practitioner law firm in the Tampa Bay area of Florida. Martin Law focuses on animal law, business law, estate planning/probate, LGBT issues, and real property.
Martin Law Office, P.A.
10200 Gandy Blvd. N. #1014
St. Petersburg, FL 33702
Tel: 813-260-1413
Fax: 888-250-6501
Email: timm@martinlawfl.com
