Power of Attorney by Tillman

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.

Limited Power of Attorney

A "Limited Power of Attorney" gives the agent authority to conduct a specific act. For example, a person might use a Limited Power of Attorney to sell a home in another state by delegating authority to another person to handle the transaction locally through a "limited power of attorney." Such a power could be "limited" to selling the home or to other specified acts.

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. There are exceptions for military Powers of Attorney and for Powers of Attorney created under the laws of another state.

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.

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 if a third party requires the agent to sign an affidavit prior to honoring the Power of Attorney?

A third party is authorized by Florida law to require the agent to sign an affidavit (a sworn or an affirmed written statement), stating that he or she is validly exercising the authority under the Power of Attorney. If the agent wants to use the Power of Attorney, the agent may need to sign the affidavit if so requested by the third party. The purpose of the affidavit is to relieve the third party of liability for accepting an invalid Power of Attorney. As long as the statements in the affidavit are true at that time, the agent may sign it. The agent may wish to consult with a lawyer prior to signing it. (You may find a sample Affidavit of Agent at the end of this booklet.)

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. If an agent is unsure whether he or she is authorized to do a particular act, the agent should consult the lawyer who prepared the document or other legal counsel.

Who may serve as an agent

Any competent person 18 years of age or older may serve as an agent. Agents should be chosen for reliability and trustworthiness. Certain financial institutions with trust powers may also serve as agents.

What is a "third party?"

As used in this pamphlet, a "third party" is a person or institution with whom the agent has dealings on behalf of the principal. Examples include a bank, a doctor, the buyer of property that the agent is selling for the principal, a broker, or anyone else with whom the agent must deal on behalf of the principal.

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. The third party is required to give the agent a written explanation of why they are refusing to accept the Power of Attorney within a reasonable time after it is presented to the third party.

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. The agent may only act as authorized by Florida law and the terms of the Power of Attorney. There are additional requirements for real estate transactions in Florida and if the Power of Attorney does not comply with those requirements its use may be limited to banking and other non-real estate transactions. The third person may also request an opinion of counsel that the Power of Attorney was properly executed in accordance with the laws of the other state.

What is an "agent?"

The "agent" is the recipient of the Power of Attorney - the party who is given the power to act on behalf of the principal. The agent is sometimes referred to as an "attorney-in-fact". The term "attorney-in-fact" does not mean the person is a lawyer.

Principal

The "principal" is the maker of the Power of Attorney - the person who is delegating authority to another. This is the person who is allowing someone else to act on his or her behalf.

When is a Power of Attorney effective?

The Power of Attorney is effective as soon as the principal signs it. However, a Durable Power of Attorney executed prior to Oct. 1, 2011 that is contingent on the incapacity of the principal (sometimes called a "springing" power), remains valid but is not effective until the principal's incapacity has been certified by a physician. Springing Powers of Attorney may not be created after Sept. 30, 2011.

How does the agent initiate decision-making authority under the Power of Attorney?

The agent should review the Power of Attorney document carefully to determine what authority the principal granted. After being certain that the Power of Attorney gives the agent the authority to act, the Power of Attorney (or a copy) should be taken to the third party (the bank or other institution, or person with whom you need to deal). Some third parties may ask the agent to sign a document such as an affidavit, stating that the agent is acting properly. (The agent may wish to consult with a lawyer prior to signing such a document.) The third party should accept the Power of Attorney and allow the agent to act for the principal. An agent should always make it clear that he or she is signing documents on behalf of 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 only signs his or her own name, he or she may be held personally responsible for whatever was signed. As long as the signature clearly indicates that the document is being signed in a representative capacity and not personally, the agent is protected. Though lengthy, it is, therefore, best to sign as follows: Howard Rourk, as agent for Ellsworth Toohey. In this example, Howard Rourk is the agent, and Ellsworth Toohey is the principal. Back to Top

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) the filing of a petition for dissolution of marriage if the agent is the principal's spouse unless the Power of Attorney provides otherwise.

Must the principal deliver the Power of Attorney to the agent right after signing or may the principal wait until such time as the services of the agent are needed?

The principal may hold the Power of Attorney document until such time as help is needed and then give it to the agent. Often, the lawyer may fulfill this important role. For example, the principal may leave the Power of Attorney with the lawyer who prepared it, asking the lawyer to deliver it to the agent under certain specific conditions. Because the lawyer may not know if and when the principal is incapacitated, the principal should let the agent know that the lawyer has retained the signed document and will deliver it as directed. If the principal does not want the agent to be able to use the Power of Attorney until it is delivered, the Power of Attorney should clearly require the agent to possess the original because copies of signed Powers of Attorney are sufficient for acceptance by third parties.

What is the procedure for a principal to revoke a Power of Attorney

The revocation must be in writing and may be done by a subsequent Power of Attorney. Notice should be served on the agent and any other party who might rely on the power. The notice should be served either by any form of mail that requires a signed receipt or by certain approved methods of personal delivery. Special rules exist for serving notice of revocation on banks and other financial institutions. Consult with your lawyer to be sure proper procedures are followed.

Why do third parties sometimes refuse Powers of Attorney?

Third parties are often concerned whether the document is valid. They do not know if it was executed properly or forged. They do not know if it has been revoked. They do not know if the principal was competent at the time the Power of Attorney was signed. They do not know whether the principal has died. Third parties do not want liability for the improper use of the document. Some third parties refuse to honor Powers of Attorney because they believe they are protecting the principal from possible unscrupulous conduct. If your Power of Attorney is refused, talk to your attorney.

The responsibilities of an agent

While the Power of Attorney gives the agent authority to act on behalf of the principal, an agent is not obligated to serve. An agent may have a moral or other obligation to take on the responsibilities associated with the Power of Attorney, but the Power of Attorney does not create an obligation to assume the duties. However, once an agent takes on a responsibility, he or she has a duty to act prudently. (See Financial Management and the Liability of an Agent).

May an agent sell the principal's home?

Yes. If the Power of Attorney has been executed with the formalities of a deed and authorizes the sale of the principal's homestead, the agent may sell it. If the principal is married, however, the agent must obtain the authorization of the spouse.

Must a person be competent to sign a Power of Attorney?

Yes. The principal must understand what he or she is signing at the time the document is signed. The principal must understand the effect of a Power of Attorney, to whom he or she is giving the Power of Attorney and what property may be affected by the Power of Attorney.