Instrument: Power of Attorney (POA)

What is it for?
A “power of attorney” (POA) allows an adult (the “principal”) to appoint another person (the “agent”) to act on the principal’s behalf in matters pertaining to the principal’s real and personal property, intangible property, business property, benefits, and income.

What does it do?
A POA is a writing that grants authority to an agent to act in the place of the principal. Fla. Stat. Ann. § 709.2102(9).

To be “durable,” which means the agent’s authority continues while the principal is incapacitated, the POA document must contain the words “this durable power of attorney is not terminated by subsequent incapacity of the principal except as provided in chapter 709, Florida Statutes,” or similar words. Fla. Stat. Ann. § 709.2104.

In making decisions for the principal, the agent must act in good faith, only within the scope of the authority granted in the POA, and in accordance with the principal’s known expectations and in the principal’s best interest. Fla. Stat. Ann. § 709.2114.

Third parties may generally accept decisions made by the agent as if the principal had made them. They may, however, request the agent for a certification of the POA’s validity. Fla. Stat. Ann. § 709.2119.

How does one make it?
A POA generally must be in writing, signed by the principal and by two subscribing witnesses, and notarized. Fla. Stat. Ann. § 695.03(1). If the principal is physically unable to sign the POA, the notary public may sign the principal’s name for the principal. Fla. Stat. Ann. § 709.2105 (2).

When does it come into effect?
A POA is exercisable when executed, at a later date if specified on the POA document, or upon the occurrence of a specified event if stated in the POA. Fla. Stat. Ann. § 709.2108(1)(3). If the agent’s authority begins after a determination of the principal’s “incapacity,” this is defined as the principal’s inability to take those actions necessary to obtain, administer, and dispose of real and personal property, intangible property, business property, benefits, and income. Fla. Stat. Ann. § 709.2102(7).

How long does it last?
A POA lasts until the principal or agent dies or becomes incapacitated (if the POA is not durable); the principal is adjudicated totally or partially incapacitated by the court (unless the POA is durable); the principal revokes the POA; the POA provides that it terminates; the purpose of the POA is accomplished; the agent’s resigns or is removed by the court; or the POA terminates. Fla. Stat. Ann. § 709.2109. An agent must be made aware of the POA’s termination for it to be effective. Fla. Stat. Ann. § 709.2109(4).

How does one end it?
A principal may revoke a POA by either signing a written revocation document or executing a subsequent POA that revokes the prior POA. The principal must give notice of the revocation to the agent for the revocation to be effective. Fla. Stat. Ann. § 709.2110(1). Note that executing a subsequent POA does not revoke a prior POA unless the subsequent POA specifies that it does. Fla. Stat. Ann. § 709.2110 (2).

What does an example look like?
Florida does not provide a statutory POA form.

What else should one know?
Florida’s POA is not based on the Uniform Power of Attorney Act.

Last updated July 2022

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