Having a properly drafted and executed POA helps protect you and your loved ones if you are unable to make decisions for yourself. At Cape Coral Law Firm, we often help clients understand what a POA is, how it works in Florida, and how to make sure it meets your goals. Below is a breakdown of what you should know.
What is a Power of Attorney?
A Power of Attorney is a legal document in which one person grants another person the authority to act on his or her behalf. A Power of Attorney can be limited (for a specific purpose or time period) or general (allowing the POA to essentially “step in your shoes”). In Florida, the rules and definitions governing POAs are found in Florida Statute Chapter 709. When executed properly, the agent can step in and handle financial affairs, property matters, and other tasks on behalf of the principal if needed.
Why Do You Need a Power of Attorney?
There are two main reasons for establishing a Power of Attorney:
- Planning for incapacity: If you become unable to manage your affairs (because of illness or injury) a POA allows your trusted agent to step in without needing a court-appointed guardian.
- Everyday convenience: You might have a trusted person whom you want to act for you when you’re unable to be present (for example, out of state), or you simply want someone to help manage things for you.
Having a POA done in advance gives you control to choose who your agent is and what powers they have.
Top 5 Things Should You Know About a Power of Attorney
- Under Florida law, a properly executed POA is immediately effective when signed. Florida law prohibits “springing” powers of attorney (i.e., those that only become effective upon some future event or date) for documents executed after October 1, 2011. This is an important distinction because while a Power of Attorney can sometimes be used to plan for incapacity, Florida’s limitations on “springing” Powers of Attorney means that you can’t have a Power of Attorney which only becomes effective upon your incapacity.
- In order for a Power of Attorney to remain in place in the event of your incapacity, it must be a “durable” Power of Attorney. In Florida, a POA is considered “durable” if it contains language indicating that the agent’s authority continues even if the principal becomes incapacitated.
- For a POA to be valid the agent (person serving as the POA) must be a natural person age 18 or older, or a financial institution with trust powers in Florida, and the principal (person granting power to the POA) must sign the POA in the presence of two subscribing witnesses and have the signature acknowledged before a notary public.
- There are certain things an agent cannot do under any POA in Florida (for example, vote in public elections for the principal or executing a will on behalf of the principal).
- Power of Attorney terminates if the principal dies, if the principal becomes incapacitated (unless the POA is durable), if the principal revokes it in writing, or if the agent resigns.
Top 5 Tips to Make Sure Your POA Works for You
Because POAs are powerful tools, the details matter. Here are some practical tips:
- Choose your agent carefully: Your agent should be someone you trust implicitly, because they’ll have authority to act on your behalf. Make sure they understand your wishes and are willing to serve.
- Be specific about powers: Think ahead about what you want your agent to handle and ask an attorney whether a Power of Attorney is the best vehicle to meet your needs.
- Keep the document safe and accessible: Store the original in a safe place and let your agent and close family members know where it is.
- Review and update as needed: Life changes such as marriage, divorce, death, and moving may necessitate updating your POA.
- Consult an attorney: Although form templates exist, Florida’s law is detailed, and generic forms may not meet your specific needs. Working with a law firm experienced in estate, elder, or asset-protection planning ensures your POA is tailored to you.
At Powers & Rogers, we understand how important planning documents such as a Power of Attorney are to your overall estate and life-planning strategy. We can help by reviewing your current documents (if you have one) for validity and adequacy under Florida law or drafting a POA that reflects your specific wishes.
If you live in Florida (particularly the Cape Coral / Southwest Florida region) and want to get ahead on your planning, we would be glad to sit down with you and make sure your POA (and other documents) are in order. Reach out to us and we’ll help you take that step.