A Look At Durable Power Of Attorney in Florida
Florida Statute §709.2101(1) defines a durable power of attorney as "a writing 1) that is executed by a principal and 2) that complies with … the execution requirements … [and contains certain] statutorily prescribed language," or, in the case of a power of attorney that "was executed before January 1, 2011 … a writing that is executed by a principal and 2) that is 1) dated the same date as the signature on the writing, 2) signed by the principal, and 3) attested by two subscribing witnesses … [and] bearing a notarial seal."
Florida Durable Power of Attorney is essentially a competency document permitting an individual to appoint one or more persons to have authority to perform certain tasks on their behalf . Durable power of attorney becomes effective upon execution unless an individual wishes to designate a subsequent date which can be significantly advantageous absent proper estate planning allowing the agent to avoid accounting to a subsequent personal representative.
Florida law imposes a legal duty on the Agent to act in good faith, and the Agent is liable for expenses or losses sustained by the Principal as a result of conducting acts beyond the scope of the authority granted in the Durable Power of Attorney. See Florida Statute §717.1101(18).
The Elements of a Florida Durable Power Of Attorney
A Florida durable power of attorney form is a powerful document, meant to give the agent you name (your "attorney in fact") authority to handle a variety of transactions on your behalf. These transactions may include selling assets, starting and stopping litigation, opening and closing bank accounts, spending money on your behalf, taking out mortgages and much more. You can limit the authority of your attorney in fact, but generally, the scope of such a power of attorney is broad.
Such a document is "durable" because it remains in effect during the principal’s incapacity. That is, unless you include language limiting the authority of your attorney in fact in some way upon your incapacity, the power of attorney will continue to remain in effect even if you are unable to act for yourself. It is also important to note that the durable power of attorney must be signed while the principal is mentally competent in order for it to remain effective if he or she becomes incompetent.
Requirements and Individuals Qualified to Create a Durable Power of Attorney
In Florida, any competent adult may create a durable power of attorney. A principal – the person who grants power of attorney – may be an individual who is at least 18 years old. A valid durable power of attorney must also state that it is not revoked by a subsequent disability of the principal, as required in Section 709.2201(2)(b) of the Florida Statutes. This important notation secures the agent’s authority to manage the principal’s affairs in the future, when the principal may have a diminished capacity or become incapacitated. However, proving incompetence will require a court of law to review the facts and enter its order accordingly. An agent can only act on behalf of the principal while the principal is alive and can revoke the agreement subject to any statutory limitations in place. Section 709.211(f) allows the principal to designate the duration of the agreement. Without specified limitations, the appointment will remain valid indefinitely.
How Can You Obtain a Durable Power of Attorney Form for Free?
Residents of Florida can easily get their hands on a Durable Power of Attorney form at no cost. Some people aren’t comfortable with filling out complex legal forms or simply don’t have the time to hire a lawyer to do it for them. Free forms can provide an opportunity for some to take the next step in ensuring that their wishes are known.
Government Websites
Both the Adult Financial Literacy and the Florida Senate websites have links to free Durable Power of Attorney forms. Both sites allow residents of the state to pick out which form is right for them depending on whether they want a Limited Durable Power of Attorney or a Durable Power of Attorney.
Legal Aid
Residents of Florida looking for a free, blank Durable Power of Attorney form should check with their local legal aid office. The Florida Bar refers individuals in need of legal assistance to contact any number of its local legal aid offices around the state. These facilities often provide free services to low-income or disabled individuals seeking assistance with legal issues. Most legal aid offices are non-profit entities and operate independently from the state. Each office may have its own policies regarding the types of representation and assistance they provide, but many legal aid offices usually offer free standardized forms and instructions to those with limited incomes. Residents interested in creating a Durable Power of Attorney should consult The Florida Bar website for a list of legal aid offices in their area.
Free Online Resources
Other sources where residents of the state can locate free resources for completing a Durable Power of Attorney form is by visiting online legal websites. Many online document preparation websites have free forms that can be downloaded for free. Some of the sites allow individuals to fill out the forms online and save the completed version onto their computers for their records. Some of these websites also have detailed information on how to complete the legal power of attorney document. Some of the forms and instructions offered online may be outdated or contain incorrect information so when using these websites, people should be cautious. However, for those comfortable using these sites, these resources provide a convenient and cost-effective way to prepare a legally binding legal power of attorney document.
Completing a Florida Durable Power of Attorney Form Properly
1. Enter Your Name
Your full legal name should be entered in the blanks made available. It is important to enter your full legal (birth) name here as this is how the courts will know you. Your name should be consistent throughout the form.
2. Enter the Effective Date
Next, you have to enter the date that the power of attorney should become effective. You can use the day that the Durable Power of Attorney is signed as the effective date or you can enter a different date if you choose, such as if you wanted the power of attorney to be able to take effect on a particular account only after a certain date, rather than at the time of execution. If you leave it blank, it will take effect immediately.
3. Name an Agent
The person you are delegating authority to is called an agent. You must enter the name of your agent onto the form. If you have more than one agent, you will want to specifically mention the other people and how their powers will be different or in addition to the agent named .
4. Initial the Following
The form you will print out and work off of will include the following:
This section should be initialed by you, showing that you have read and understood these provisions.
5. Enter Agent’s Powers
The next section will include a list of all powers granted to the agent. You can choose to grant your agent all of the powers listed or a selected few powers.
6. Third Party Acceptance
Because attorneys-in-fact have control over someone’s financial and other property, this section includes language expressly releasing third parties from liability when they accept a Durable Power of Attorney from your agent. Ex.
7. Sign and Date
You will need to sign and date the document to make it valid. It is possible that you may have to acknowledge the power of attorney before a notary public or record it with the county clerk’s office.
Legal Issues and Precautions
It is important to note that free forms found online or in other places may contain errors that carry with them legal risks. As is the case for many legal forms, there are many such forms on the internet still driving lawyers and very qualified paralegals nuts because they just simply make no sense at all. One of the purposes of this section is to give you basic information as to the kind of things you should be thinking about when you create a Florida Durable Power of Attorney. A valid Florida Durable Power of Attorney needs to trigger an agent’s duty of care. Among the reasons for this is that certain real estate transactions over $10,000.00 generally require a separate instrument, such as a deed or other writing. This is sometimes referred to as the "integrated writing" requirement. There are also various statutory requirements, such as the requirement that the power of attorney be signed in the presence of two subscribing witnesses and that it be executed in your presence. (consisten with the Uniform Power of Attorney Act.) If the power of attorney contains broad sweeping powers, an unscrupulous agent could easily make unfettered decisions regarding your assets. For example, real estate brokerage houses and other financial institutions will accept relatively few restrictions on financial accounts entrusted to agents. Documents that appear to grant sweeping powers to agents should therefore be reviewed closely. Some Very Specific Examples You could grant written authority to your spouse to sell, mortgage, or even lease real property that you own. Another example might be a real estate instrument empowering another to convey a claimant’s interest. Unfortunately, some people may seek to persuade you to grant them significant powers through fear of what may happen to you as a result of an unexpected illness or disability. There is no substitute for common sense, which should only be disturbed when there is good reason. You should be thinking about who you trust ABSOLUTELY to act in your best interests and avoid even the appearance of any conflicts of interest. These are critical matters (and should also be reviewed by an attorney.)
Revoking or Modifying a Durable Power Of Attorney
Once you have a durable power of attorney in place, you may later decide that you would like to revoke or change it. Either way, the process in Florida is relatively simple.
As a general rule, there is no time limit on the effectiveness of a durable power of attorney (it will be the same for as long as you are alive and mentally competent).
The legal principal to remember is that revocation is the same as termination. When you revoke a power of attorney, you are terminating it. So the principle is that you revoke a power of attorney when you are competent. Once you are incompetent, you cannot do so.
Besides waiting to become incompetent, the only other real requirement is to give notice. You must notify your agents, the principal, and the attorney-in-fact that the power of attorney has been revoked .
Revocation is applicable to all powers of attorney, regardless of whether they are durable or not. To be clear, revocation is not a new power of attorney with new agents or new attorneys-in-fact. Revocation can be done verbally, by mailing a letter to agents or others, or by preparing a revocation form (which, as you may have guessed, I have provided above).
However, just because you have revoked a power of attorney, does not mean that a new power of attorney is necessary. In other words, you may choose only to revoke power of attorney no. 1 and continue with power of attorney no. 2. A second power of attorney can simply be an amendment to the first. An amendment does not require the attorney-in-fact or the agent to be replaced, only the list of powers conferred under a given durable power of attorney.