Power of AttorneyIn general, someone issues a "power of attorney" to someone else to authorize legal action on their behalf. There are three types of power of attorney typically used in Florida. Limited, general, and durable powers of attorney grant someone specific responsibilities when acting on another's behalf. The document, itself called the "power of attorney," must define the scope and duration of these powers. Once a power of attorney (POA) is issued and enacted, it becomes effective immediately rather than relying on a “triggering event” such as incapacitation. Changes have taken place to the laws recently, which may be confusing to people who have older power of attorney agreements in place. An attorney experienced in probate can help you make sense of the changes to the law, and what they mean to you.
The person designating the power is called the “principal” and the person who is given the powers of attorney is known as the “agent.” In estate planning, the more specific "durable power of attorney" is a special provision where an agent continues to hold POA after the principal becomes incapacitated. A probate attorney at the Coye Law Firm can discuss with you when durable of attorney is needed, along with the legal process for appointing one.
Default Duties of An AgentFlorida State statute chapter 709.2114 lists the default duties of anyone assigned powers of attorney in the state of Florida. The law requires an agent to:
- Act only within powers granted to them. The agent must act in “good faith” on behalf of the principal’s best interest, and must attempt to follow the principal’s plans and wishes as best known to them.
- Act loyally on behalf of the principal, without creating a conflict of interest. The agent must act with care and diligence. The agent especially should cooperate with anyone who has authority to make health care decisions for the principal in order to carry out the principal’s wishes as best they can.
- Record receipts, disbursements, and transactions made on behalf of the principal. The agent cannot delegate authority to a third person unless the principal has agreed. The agent must also maintain an accurate inventory when accessing the principal’s safe deposit box, if the POA allows the agent access to it.
- Not be held responsible for any decline in the value of the principal’s property, as long as the agent hasn’t committed any breach of duty.
- Keep receipts, inventories, and other documentation private unless ordered by a court or requested by the principal or another agent of the principal.
Durable Power of AttorneyDurable power of attorney is the category granting the most power to another person. Typically, the limited and general powers of attorney become ineffective if the person who granted them becomes incapacitated. Durable power of attorney, however, includes a provision saying that the person chosen still has legal responsibilities. This is important in estate planning because the agent may carry out a living will if the principal has one, and the agent is also granted health care surrogacy. Once the person dies, the durable power of attorney is revoked.
Appointing Power of AttorneyThe document granting someone legal rights can be created by a probate lawyer. Some of the most important aspects, including specific duties and length of the power, can be explicitly written to make sure that your legal rights will be exercised in a particular way. Health care surrogacy can be designated in conjunction with the power of attorney form.
The following form may not exactly resemble the one your attorney prepares for you. However, it can let you know what information you should be ready to provide and get you thinking about the type of power of attorney you’d like to designate to an agent, and for how long and under what circumstances they will retain this power
Florida Department of Revenue: Power of Attorney & Declaration of Representative
Granting someone power over your legal rights is not a decision to take lightly. To explore the possible options and draft a document with definitive language explaining your wishes and needs, contact an experienced estate planning attorney at the Coye Law Firm today.