Power of Attorney, by Mathis, Donnie

What is a "General Power of Attorney"?

A "General Power of Attorney" typically gives the agent very broad powers to perform any legal act on behalf of the principal. A specific list of the types of activities the agent is authorized to perform must be included in the document.

What is a "Limited Power of Attorney"?

A "Limited Power of Attorney" gives the agent authority to conduct a specific act.

What is a Power of Attorney?

A Power of Attorney is a legal document delegating authority from one person to another.

Where may a person obtain a Power of Attorney?

A Power of Attorney is an important and powerful legal document, as it is authority for someone to act in someone else's legal capacity. It should be drawn by a lawyer to meet the person's specific circumstances. Pre-printed forms may fail to provide the protection desired.

What are some uses of a Power of Attorney?

A Power of Attorney may be used to give another the right to sell a car, home or other property. A Power of Attorney might be used to allow another to access bank accounts, sign a contract, make health care decisions, handle financial transactions or sign legal documents for the principal. A Power of Attorney may give others the right to do almost any legal act that the maker of the Power of Attorney could do, including the ability to create trusts and make gifts.

Does a Power of Attorney need witnesses or a notary?

A Power of Attorney must be signed by the principal and by two witnesses to the principal's signature, and a notary must acknowledge the principal's signature for the Power of Attorney to be properly executed and valid under Florida law.

What is a "Durable Power of Attorney"?

A Power of Attorney terminates if the principal becomes incapacitated, unless it is a special kind of Power of Attorney known as a "Durable Power of Attorney." A Durable Power of Attorney remains effective even if a person becomes incapacitated. However, there are certain exceptions specified in Florida law when a Durable Power of Attorney may not be used for an incapacitated principal. A Durable Power of Attorney must contain special wording that provides the power survives the incapacity of the principal. Most Powers of Attorney granted today are durable.

What else may the third party require?

A third party may also make a reasonable request for an opinion of counsel as to any legal matter concerning the Power of Attorney, including its proper execution under the laws of another state. A third party may request a certified English translation if any part of the Power of Attorney is in a language other than English.

What activities are permitted by an agent?

An agent may perform only those acts specified in the Power of Attorney and any acts reasonably necessary to give effect to the specified acts.

Who may serve as an agent?

Any competent person 18 years of age or older may serve as an agent.

Court proceedings were filed to appoint a guardian for the principal or to determine whether the principal is incapacitated. How does this affect the Power of Attorney?

If a court proceeding to determine the principal's incapacity has been filed or if someone is seeking to appoint a guardian for the principal, the Power of Attorney is automatically suspended and an agent must not continue to act. The power to make health care decisions, however, is not suspended unless the court specifically suspends this power.

What if the third party will not accept the Power of Attorney?

If the Power of Attorney was lawfully executed and it has not been revoked, suspended or terminated, third parties may be forced to honor the document.

What happens if the Power of Attorney was created under the laws of another state?

If the Power of Attorney was properly executed under the other state's laws, then it may be used in Florida, but its use will be subject to Florida's Power of Attorney Act and other state laws.

What is the difference between a "trustee" and an "agent"?

Like a Power of Attorney, a trust may authorize an individual (the "trustee") to act for the maker of the trust during the maker's lifetime.

What is an "agent"?

The "agent" is the recipient of the Power of Attorney

What is a "principal"?

The "principal" is the maker of the Power of Attorney - the person who is delegating authority to another.

When is a Power of Attorney effective?

The Power of Attorney is effective as soon as the principal signs it.

How should the agent sign when acting as an agent?

The agent will always want to add after his or her signature that the document is being signed "as agent for" the principal.

How should the agent sign when acting as an agent?

The agent will always want to add after his or her signature that the document is being signed "as agent for" the principal. If the agent signs only his or her own name, he or she may be held personally responsible for whatever was signed.

When does a particular agent's authority terminate?

The authority of an agent under a Power of Attorney automatically ends when one of the following things happens: (1) the agent dies, (2) the agent resigns or is removed by a court, (3) the agent becomes incapacitated, or (4) there is a filing of a petition for dissolution of marriage if the agent is the principal's spouse, unless the Power of Attorney provides otherwise.

When does a Power of Attorney terminate?

The authority of any agent under a Power of Attorney automatically ends when one of the following things happens: (1) the principal dies, (2) the principal revokes the Power of Attorney, (3) a court determines that the principal is totally or partially incapacitated and does not specifically provide that the Power of Attorney is to remain in force, (4) the purpose of the Power of Attorney is completed, or (5) the term of the Power of Attorney expires. In any of these instances, the Power of Attorney is terminated. If, after having knowledge of any of these events, a person continues to act as agent, he or she is acting without authority.

Is there a certain code of conduct for agents?

Yes. Agents must meet certain standards of care when performing their duties. An agent is looked upon as a "fiduciary" under the law. A fiduciary relationship is one of trust. If the agent violates this trust, the law may punish the agent both civilly (by ordering the payment of restitution and punishment money) and criminally (probation or jail). The standards of care that apply to agents are discussed under Financial Management and the Liability of an Agent.

May a Power of Attorney avoid the need for guardianship?

Yes. If the alleged incapacitated person executed a valid Durable Power of Attorney prior to his or her incapacity, it may not be necessary for the court to appoint a guardian, since the agent already has the authority to act for the principal

What is a "third party"?

a "third party" is a person or institution with whom the agent has dealings on behalf of the principal.