Finance
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
Education
No information available at this time.
Health
Instrument: Advance Directive (AD)
What is it for?
An “advance directive” (AD) empowers an adult (the “principal”) to designate one or more others (the “health care surrogate(s)”) to make health care decisions and to receive health care information on the principal’s behalf either immediately or only while the principal lacks capacity to do so. Note that an AD may, but need not, include a health care surrogate appointment. An AD may also contain both a surrogate appointment and health care instructions.
What does it do?
Generally, the AD allows the surrogate to make decisions related to health care when the principal lacks capacity to do so. However, the surrogate’s authority to make health care decisions for the principal may take effect immediately if the AD specifically states so. Fla. Stat. Ann. § 765.101(21). In either case, a health care decision made on the principal’s behalf by a surrogate is effective to the same extent as a decision made by the principal. Fla. Stat. Ann. § 765.204(3)).
Health care decisions that a surrogate may make include:
(a) giving, refusing or withdrawing informed consent to any and all health care, including life-prolonging procedures and mental health treatment, unless otherwise stated in the AD;
(b) deciding to apply for private, public, government, or veterans’ benefits to defray the cost of health care;
(c) accessing health information of the principal reasonably necessary for a health care surrogate or proxy to make decisions involving health care and to apply for benefits; and
(d) making an anatomical gift. Fla. Stat. Ann. § 765.101(6).
In exercising this authority, the surrogate must consult expeditiously with appropriate health care providers to provide informed consent, and make only health care decisions for the principal which he or she believes the principal would have made under the circumstances if the principal were capable of making such decisions. If there is no indication of what the principal would have chosen, the surrogate may consider the patient’s best interest in deciding that proposed treatments are to be withheld or that treatments currently in effect are to be withdrawn. Fla. Stat. Ann. § 765.205(1)(b).
How does one make it?
To designate a health care surrogate, the AD must be in writing and signed by the principal or by a representative directed by the principal in the presence of two adult witnesses. Fla. Stat. Ann. § 765.202(1). A surrogate may not act as a witness to the designation of the health care surrogate, and at least one witness must not be either the principal’s spouse nor blood relative. Fla. Stat. Ann. § 765.202(2).
When does it come into effect?
The surrogate’s authority comes into effect either upon a determination of incapacity (if required) or after executing the AD. This determination must be made by the principal’s primary or attending physician after evaluating the principal. Incapacity may not be inferred from the person’s voluntary or involuntary hospitalization for mental illness or from her or his intellectual disability. Fla. Stat. Ann. § 765.204.
How long does it last?
Unless the AD document states a time of termination, the designation of a surrogate remains in effect until the AD is revoked by the principal. Fla. Stat. Ann. § 765.202(7).
How does one end it?
An AD may be revoked at any time by a competent principal by either signing a written revocation, destroying the AD, orally expressing an intent to revoke, or executing a subsequent AD that is materially different from a prior AD. Fla. Stat. Ann. § 765.104(1). To be effective, the revocation must be communicated to the surrogate, health care provider, or health care facility. Fla. Stat. Ann. § 765.104(3).
What does an example look like?
A sample AD form is provided at Fla. Stat. Ann. § 765.203. The Florida Agency for Health Care Administration also provides sample AD forms.
What else should one know?
A determination made pursuant to this section that a principal lacks capacity to make health care decisions shall not be construed as a finding that a principal lacks capacity for any other purpose. Fla. Stat. Ann. § 765.204 (5).
Last update July 2022
General
No information available at this time.