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.
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.
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.
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 Therefore, the principal should notify others when a POA has been revoked.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.
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