Power of Attorney

If you’re thinking about setting up a Power of Attorney (POA) in Florida, it’s a smart move to talk to a lawyer who knows the ins and outs of estate planning. The Medley Law Firm is the right place to get legal help with this big decision.

In the following article, we’ll outline what a POA does, who needs a POA, and what types of POAs are available. But for more detailed information about including a POA as a part of your estate plan, get in touch with our firm

Call Medley Law Firm for a consultation. We can help you figure out whether it’s time to form a POA, what type of POA you might need, and how to get it executed. 

What is a Power of Attorney in Florida? 

A Power of Attorney (POA) in Florida is a legal document that grants one person (the agent or attorney-in-fact) the authority to act on behalf of another person (the principal) in specific matters. These matters can include financial, legal, medical, or business decisions. The scope and duration of these powers depend on the type of POA and the wishes of the principal.

Powers of the Agent:

• Financial Decisions: The agent can handle banking transactions, pay bills, manage investments, buy or sell property, and handle other financial matters.
• Healthcare Decisions: If specified, the agent can make healthcare decisions for the principal. This is more commonly addressed in a separate document known as a Healthcare Power of Attorney.
• Legal and Business Decisions: The agent can sign legal documents, file tax returns, and operate the principal’s business.

Limitations:

• Scope of Authority: The agent’s power is limited to what is explicitly stated in the POA document. For example, if the POA does not mention real estate transactions, the agent cannot buy or sell property on the principal’s behalf.
• Durability: A regular POA becomes invalid if the principal becomes incapacitated. A Durable Power of Attorney, however, remains in effect even if the principal loses the capacity to make decisions.
• Principal’s Supervision: As long as the principal is capable, they can oversee and revoke the agent’s actions and authority at any time.
• Acting in Principal’s Best Interest: The agent is legally obligated to act in the principal’s best interest, not their own. This means avoiding conflicts of interest and managing the principal’s affairs prudently.
• Legal and Ethical Boundaries: The agent cannot perform acts that are illegal or against public policy. They cannot change the principal’s will or make decisions after the principal’s death unless explicitly allowed.

In Florida, the specifics of a Power of Attorney, such as how it is established and the exact powers granted, are governed by Florida law. It is essential for both the principal and the agent to understand these rules to ensure that the POA is executed correctly and used appropriately.

When do you need a power of attorney?

In Florida, a Power of Attorney (POA) can be a crucial tool in various situations where someone needs another person to act on their behalf. Here are some common scenarios where forming a POA might be considered:

• Aging Individuals: Elderly individuals may create a POA to have someone manage their affairs if they become unable to do so due to age-related issues like dementia or physical incapacity.
• Health-Related Incapacity: If someone is facing a medical procedure or has a health condition that could lead to incapacity, they might set up a POA to ensure their affairs are handled during periods when they cannot make decisions themselves.
• Military Deployment: Service members often create a POA before deployment to manage their financial and legal matters while they are away.
• Extended Travel: Individuals planning to be out of the country or state for an extended period might use a POA to manage financial transactions or property matters in their absence.
• Business Management: Business owners might establish a POA to delegate the running of their business to a trusted individual if they are unable to manage it themselves due to health reasons or other commitments.
• Estate Planning: As part of estate planning, a POA can be established to handle financial affairs and decisions, especially in cases where an individual is concerned about potential future incapacity.
• Real Estate Transactions: If someone is unable to be physically present for key real estate transactions, they might use a POA to authorize someone to act on their behalf in buying, selling, or managing property.
• Incapacity Planning: Individuals who want to prepare for unexpected illness or accidents may create a POA as part of their incapacity planning to ensure their affairs are managed according to their wishes.
• Managing Financial Affairs for a Loved One: Individuals may need to manage the financial affairs of a parent or other family member who is no longer capable of doing so, necessitating a POA.
• Legal Matters: If facing legal issues or litigation and unable to be present or actively involved, an individual might assign a POA to handle these matters.
• Complex Financial Situations: For those with complicated financial portfolios or investments, a POA can allow a trusted financial advisor to manage these assets effectively.
• Child Care and Custody: Under some circumstances, parents might set up a POA to grant another adult authority to make decisions regarding their child’s care in their absence.

In each of these situations, it’s crucial to understand the specific powers granted through the POA and ensure that it complies with Florida law. A POA can be tailored to fit the particular needs and circumstances of the individual, granting broad or limited powers depending on what is required. Consulting with a legal professional can provide guidance and ensure that the POA is valid and effective for its intended purpose.

What are the different types of power of attorney forms? 

In Florida, there are several types of Power of Attorney (POA) forms, each designed for specific purposes and situations. Understanding these different forms will help you choose the one that best suits your needs. Here’s an overview of the main types:

General Power of Attorney: This form grants broad powers to the agent to handle a wide range of the principal’s affairs, including financial and business transactions. However, it becomes invalid if the principal becomes incapacitated.

Durable Power of Attorney: Similar to a General POA in terms of the breadth of powers, the key difference is that a Durable POA remains in effect even if the principal becomes incapacitated. This feature makes it particularly useful for long-term planning.

Limited or Special Power of Attorney: This form is used when the principal wants the agent to handle specific matters or transactions, like selling a property or managing certain financial accounts. The powers are narrowly defined and typically expire once the specified task is completed.

Health Care Power of Attorney: Also known as a Designation of Health Care Surrogate in Florida, this POA allows the agent to make medical decisions on behalf of the principal if they become unable to do so themselves. It’s different from a living will, which outlines the principal’s wishes regarding life-prolonging procedures.

Springing Power of Attorney: This POA becomes effective only under specific circumstances, such as when the principal becomes incapacitated. The conditions triggering the POA must be clearly defined in the document.

How do you choose the right form? 

Assess Your Needs: Consider why you need a POA and what type of decisions you want the agent to make. If you need someone to handle all your affairs if you’re incapacitated, a Durable POA is appropriate. For a single transaction, like selling a house, a Limited POA is more suitable.

Consider the Duration: Determine how long you need the POA to be in effect. A General or Durable POA is ongoing, while a Limited POA is typically for a short duration.

Plan for Incapacity: If preparing for potential future incapacity, a Durable or Springing POA is appropriate as they remain valid even if you lose the ability to make decisions.

Healthcare Decisions: If your primary concern is healthcare decisions, a Health Care Power of Attorney is necessary to ensure someone can make medical decisions on your behalf.

Legal Compliance: Consult an estate planning attorney to ensure the POA complies with Florida law. This includes requirements like being in writing, having the necessary signatures, and being notarized.

Given the legal complexities and significant implications of a POA, consulting with a legal professional experienced in Florida’s laws is advisable. Medley Law Firm can guide you in choosing the right form and drafting a document that meets your specific needs. Each type of POA serves different purposes and has its own implications. It’s crucial to choose the one that aligns with your current situation and future planning goals.

What is the process for drafting a POA? 

Creating a Power of Attorney (POA) document in Florida involves several steps to ensure its legality and effectiveness. Here’s a breakdown of the process:

1. Before drafting the POA: You need to figure out what type of POA you need (such as a General, Durable, Limited, or Health Care POA) and who will act as your agent. Select a trusted individual to act as your agent. This person should be reliable, trustworthy, and capable of handling the responsibilities granted by the POA.
2. Drafting the POA: The POA document should clearly outline the powers granted to the agent. This can include financial decisions, health care decisions, or specific tasks.
3. Adhere to Florida State Law Requirements:
   Notarization: Florida law requires that POA documents be notarized. This means the principal must sign the document in the presence of a notary public.
   Witnesses: The POA must be signed in the presence of two witnesses. The witnesses must be competent adults, and it’s recommended that they be independent (not the agent or closely related to the agent or principal).
   Recording: While not always required, certain POAs, especially those dealing with real estate transactions, may need to be recorded with the local county recorder’s office.
4. Make Copies: After the POA is duly signed, notarized, and witnessed, make several copies. The original should be kept in a safe place, and copies should be given to your agent and possibly to financial institutions, medical providers, or others who may need to recognize the agent’s authority.
5. Updating or Revoking the POA: Be aware that you can update or revoke your POA as long as you are mentally competent. This process also requires formal steps, similar to creating the POA.
   

While it’s not legally required to have a lawyer to create a POA, it’s highly recommended, especially for complex situations. A lawyer can ensure that the document complies with Florida law and accurately reflects your wishes.

How Much Will The Process of Drafting A Power of Attorney Cost? 

The cost of creating a POA can vary. If you draft it yourself, the primary costs are for notarization and any recording fees. However, if you use a lawyer, the costs will reflect the complexity of the POA and the lawyer’s rates. 

What Are the Advantages and Disadvantages of Having a Power of Attorney?

Having a Power of Attorney in Florida offers significant advantages but also comes with certain drawbacks that need careful consideration. 

One of the primary benefits is the ability to manage affairs during incapacity; a POA allows a trusted individual to handle financial and healthcare decisions if you become unable to do so. This is crucial in unexpected situations such as accidents or sudden illnesses. It’s also an essential tool in estate planning and can avoid the need for a court-appointed guardianship, which can be a lengthy and expensive process. 

POAs also offer flexibility as they can be tailored to specific needs and can be amended or revoked as long as the principal is competent.

However, there are several drawbacks to consider. The most significant is the potential for abuse, as the agent in a POA has substantial power, which could lead to misuse, especially if not well-chosen. 

Additionally, there’s the risk of misunderstanding and misuse by institutions like banks or hospitals, which might refuse to honor the POA, leading to complications. The process of choosing an agent and discussing end-of-life care can also be emotionally challenging for families. 

Furthermore, POAs can sometimes be challenged in court, particularly if there’s a dispute among family members. Lastly, if you become incapacitated without revoking a POA you no longer wish to be effective, it can be difficult for family members to intervene.

Call Medley Law Firm to Set Up Your POA

Setting up a Power of Attorney in Florida is a big decision. It’s more than just signing some papers – it’s about making sure someone can legally make important choices for you when you can’t. Whether it’s about your money, health, or business, a POA can really make a difference. 

But it’s also got its tricky parts, like picking the right kind of POA and making sure it’s done right to avoid any problems down the road. If all this sounds overwhelming, don’t worry. Medley Law Firm is here to help guide you through the whole process. We know the ropes and can help make sure your POA fits perfectly with your estate plan. So, if you’re ready to take this step, give us a call. We’re ready to help you out.