Power of Attorney by Clarke

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.

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. In the document, the maker of the Power of Attorney (the "principal") grants the right to act on the maker's behalf to an agent. What authority is granted depends on the specific language of the Power of Attorney. A person giving a Power of Attorney may make it very broad or may limit it to certain specific 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.

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."

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 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 is "fiduciary responsibility?"

An agent is a fiduciary and as such has multiple duties when acting for the principal. These include an overriding duty to do only those acts authorized by the Power of Attorney, and when performing those acts to act in accordance with the principal's reasonable expectations, to act in the principal's best interest, and to attempt to preserve the principal's estate plan. The preservation of the estate plan is dependent on a number of factors, including the agent's knowledge of the plan and the needs and desires of the principal. If the agent assumes responsibility for the principal's investments, the agent has a duty to invest and manage the assets of the principal as a prudent investor.

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 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.

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.

What is a "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 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.

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.

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.

What may an agent not do on behalf of a principal?

There are a few actions that an agent is prohibited from doing even if the Power of Attorney states that the action is authorized. An agent, unless also a licensed member of The Florida Bar, may not practice law in Florida. An agent may not sign a document stating that the principal has knowledge of certain facts.

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.

What are 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.

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 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.