Florida Durable Power of Attorney

Florida powers of attorney are formal legal documents with an ancient history.  In their simplest form, they were letters signed by a person designating the right of the person named in the letter to act on their behalf.  Properly used, Powers of Attorney are efficient and serve a useful purpose. In the wrong hands, Powers of Attorney are invitations to financial catastrophe and can cause great financial harm.

Florida recognizes several types of documents as Powers of Attorney.  A “Power of Attorney” is a written, legally-binding document where one person, the “principal,” cedes or delegates the right to another person, the “attorney-in-fact,” to act on his or her behalf.  How much power is granted by the principal and how many acts the attorney-in-fact can undertake on behalf of the principal depends upon the type of Power of Attorney involved.  Every Power of Attorney is powerful, and having legal counsel in both the execution as a principal and in the acceptance of power as an “attorney-in-fact” is wise. However, all Powers of Attorney cease to be valid immediately upon the death of the principal.

For example, “Limited Powers of Attorney” are used as convenient ways to sell boats or cars. “Durable Powers of Attorney” can be very comforting and helpful when family members must handle financial transactions or sign legal documents for a loved one.

Types of Powers of Attorney

1.  The Durable Power of Attorney

When a Power of Attorney provides that the power given to the attorney in fact should survive the incapacity of the principal, a “Durable Power of Attorney” is created.  Most Florida Powers of Attorney are durable.

Under Florida law, a Durable Power of Attorney remains legally valid regardless of the capacity or incapacity of the principal (the one signing over power to another, the “attorney-in-fact”).  To avoid misuse of power by the attorney-in-fact, the Florida legislature has enacted specific limitations on what the attorney-in-fact can do when there is an incapacitated principal and placed certain requirements before a Power of Attorney will be recognized as durable (Florida Statute §709.08):

The durable power of attorney must be in writing;

must be executed with the same formalities required for the conveyance of real property by Florida law; and

must contain the words: “This durable power of attorney is not affected by subsequent incapacity of the principal except as provided in s. 709.08, Florida Statutes” or similar words that show the principal’s intent that the authority conferred is exercisable notwithstanding the principal’s subsequent incapacity.

2.  General Power of Attorney

A General Power of Attorney usually includes a list of the actions the attorney-in-fact is authorized to perform on behalf of the principal, and absent this restriction leaves the attorney-in- fact  to his/her own discretion to perform any legal act on behalf of the principal that pertains to this designated list of allowed activities.

3.  Limited Power of Attorney

A Limited Power of Attorney defines a specific task or action that the attorney-in-fact is authorized to conduct on behalf of the principal.  For example, a limited power of attorney may authorize the attorney-in-fact to sell the principal’s boat and absent that limitation, the attorney-in-fact is given all power (incur expenses in the principal’s name, make promises on the principal’s behalf, etc.) to accomplish this task.

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