Power of Attorney

An agent may perform only those acts specified in the Power of Attorney, or durable power of attorney and any acts reasonably necessary to give effect to the specified acts. If an agent is unsure whether he or she is authorized to do a particular act, the agent should consult with the lawyer who prepared the legal document, or his or her own legal counsel.

 

Two types of acts may be incorporated by a simple reference to the statutes in the Power of Attorney or durable power of attorney — the “authority to conduct banking transactions as provided in section 709.2208(1), Florida Statutes” and the “authority to conduct investment transactions as provided in section 709.08(2), Florida Statutes.”  When either of these phrases is included in the Florida Power of Attorney, all of the acts authorized by the referenced statute may be performed by the agent even though the specific acts are not listed in the Power of Attorney itself.

Yes. If the Florida Power of Attorney authorizes the sale of the principal’s homestead, the agent may sell it. If the principal is married, and the property is homestead, the agent must obtain the authorization of the principal’s spouse. 

There are a few actions that an agent is prohibited from doing even if the Florida Power of Attorney states that the action is authorized. An agent, unless also a licensed member of The Florida Bar, may not practice law in Florida. An agent may not sign a document, or affidavit, stating that the principal has personal knowledge of certain facts. For example, if the principal was a witness to a car accident, the agent may not sign an affidavit stating what the principal saw or heard. An agent may not vote in a public election on behalf of the principal. An attorney-in-fact may not create or revoke a Will or Codicil for the principal. If the principal was under contract to perform a personal service (i.e., to paint a portrait or provide care services), the agent is not authorized to do these things in the place of the principal. Likewise, if someone had appointed the principal to be Trustee of a Trust or if the Court appointed the principal to be a guardian or conservator, the agent may not take over these responsibilities based solely on the authority of the durable Power of Attorney.

While the Power of Attorney gives the agent authority to act on behalf of the principal, an agent is not obligated to serve. An attorney-in-fact may have a moral or other obligation to take on the responsibilities associated with the Florida durable Power of Attorney, but the Power of Attorney does not create an obligation under Florida law to assume the duties. However, once an attorney-in-fact takes on a responsibility, he or she has a fiduciary duty to act prudently and in the best interest of the principal. (See Financial Management and the Liability of an Agent).

Yes. Agents must meet certain standards of care when performing their duties. An agent of a durable power of attorney is looked upon as a “fiduciary” under Florida law. A fiduciary relationship is one of high trust. If the agent violates this trust, Florida law may punish the attorney-in-fact both civilly (by ordering the payment of restitution and punishment money) and criminally (probation or jail). The standard of care that applies to agents under a Florida durable power of attorney is discussed under Financial Management and the Liability of an Agent.

The Florida Durable Power of Attorney is effective as soon as the principal signs it.  However, a Florida Durable Power of Attorney executed prior to October 1, 2011, that is contingent on the incapacity of the principal (sometimes called a “springing” power), remains valid but is not effective until the principal’s incapacity has been certified by a physician.  Springing Powers of Attorney may not be legally created in Florida after September 30, 2011.

The principal may hold the Power of Attorney document or durable power of attorney form until such time as help is needed and then give it to the agent. Because third parties will not honor the attorney-in-fact’s authority unless the attorney-in-fact provides the durable Power of Attorney document, the use of the Power of Attorney may effectively be delayed.

 

Often, the Florida estate planning lawyer or elder law attorney  may fulfill this important role. For example, the principal may leave the Power of Attorney with the lawyer who prepared it, asking the lawyer to deliver it to the agent under certain specific conditions. Because the estate planning lawyer may not know if and when the principal is incapacitated, the principal should let the agent know that the lawyer has retained the signed document and will deliver it as directed.  If the principal does not want the agent to be able to use the Power of Attorney until it is delivered, the durable Power of Attorney should clearly require the agent to possess the original because copies of signed Powers of Attorney are sufficient for acceptance by third parties.

The agent should review the durable Power of Attorney legal document carefully to determine what authority the principal granted. After being certain that the Power of Attorney gives the agent the authority to act, the durable Power of Attorney (or a copy) should be taken to the third party (the bank or other institution, or person with whom you need to deal). Some third parties may ask the agent to sign a document stating that the agent is acting properly. (The agent may wish to consult with an estate planning lawyer or elder law attorney prior to signing such a legal document.) The third party should accept the Power of Attorney and allow the agent to act for the principal. An agent should always make it clear on the document that the agent is signing documents on behalf of the principal pursuant to the Florida durable power of attorney.

The agent will always want to add after his or her signature that the document is being signed “as agent for” the Principal. If the agent only signs his or her own name, he or she may be held personally accountable for whatever was signed. As long as the signature clearly conveys that the document is being signed in a representative capacity and not personally, the agent is protected. Though lengthy, it is, therefore, best to sign as follows:

Howard Rourk, as agent for Ellsworth Toohey.

In this example, Howard Rourk is the agent, and Ellsworth Toohey is the principal of the durable power of attorney. 

If the durable Power of Attorney was lawfully executed and it has not been revoked, suspended or terminated, third parties may be forced to honor the legal document. The third party is required to give the agent a written explanation of why they are refusing to accept the Power of Attorney within a reasonable time after it is presented to the third party.

Under some circumstances, if the third party’s refusal to honor the Durable Power of Attorney causes damage, the third party may be liable for those damages and even attorney’s fees and court costs. Even mere delay may cause damage and this too may be actionable. It is reasonable, however, for the third party to have the time to consult with an experienced estate planning or elder law lawyer or an internal legal department about the Power of Attorney. Delay for more than a short period may be unreasonable. Upon refusal or unreasonable delay, consult a Florida estate planning lawyer or elder law attorney. You can call us for assistance at 904-448-1969 or toll free at 866-510-9099. 

Third parties are often concerned whether the durable power of attorney document is valid. They do not know if it was executed properly or forged. They do not know if it has been revoked. They do not know if the principal was competent at the time the durable Power of Attorney was signed. They do not know whether the principal has died. Third parties do not want liability for the improper use of the power of attorney document. Some third parties refuse to honor Powers of Attorney because they believe they are protecting the principal from possible unscrupulous conduct. If your durable Power of Attorney is refused, talk to your Florida estate planning lawyer or elder law attorney.

A third party is authorized by Florida law to require the agent of the power of attorney to sign an affidavit (a sworn or an affirmed written statement), stating that he or she is validly exercising the authority under the durable Power of Attorney. If the agent wants to use the Durable Power of Attorney, the agent may need to sign the affidavit if so requested by the third party. The purpose of the affidavit is to relieve the third party of liability for accepting an invalid Durable Power of Attorney. As long as the statements in the affidavit are true at that time, the agent may sign it. The agent may wish to consult with an estate planning lawyer or elder law attorney prior to signing it. (You may find a sample Affidavit of Attorney-in-fact at the bottom of this page.)  

A third party may also make a reasonable request for an opinion of cousnel as to any legal matter concerning the Power of Attorney, including its proper execution under the laws of another state.  A third party may request a certified English translation if any part of the Power of Attorney is in a language other than English.

Yes. The attorney-in-fact may hire accountants, lawyers, brokers or other professionals to help with the agent’s  duties under the durable power of attorney, but may never delegate his or her responsibility as agent. The Power of Attorney was given by the principal and the agent does not have the right to transfer that power to anyone else.

An executor, termed a “personal representative” in Florida, is the person who takes care of another’s estate after that person dies. An agent may only take care of the principal’s affairs under the durable power of attorney while the principal is alive. A personal representative may be named in a person’s Will and is appointed by the court to administer the estate. 

Like a power of attorney, a trust may authorize an individual to act for the maker of the trust during the maker’s lifetime. Like the agent in a durable power of attorney, the trustee may manage the financial affairs of the maker of the trust. A trustee only has power over an asset that is owned by the trust. In contrast, an agent under a valid durable power of attorney may have authority over all of the principal’s assets (except trust assets). Another important distinction is that a trustee may continue acting for the maker of the trust after the maker of the trust dies. In contrast, the Power of Attorney, including a durable power of attorney, expires upon the death of the principal.  Whether a trust or a Power of Attorney is the most appropriate tool for a specific situation is a question that should be addressed with your estate planning lawyer or elder law attorney.

If no less restrictive appropriate alternative is available, then a guardian may be appointed by the probate court for a person who no longer can care for his or her person or property. A person who has a Florida guardian appointed by the probate court may not be able to lawfully execute a Power of Attorney. If an agent discovers that a Florida guardian has been appointed prior to the date the principal signed the durable Power of Attorney, the agent should advise his or her Florida estate planning lawyer or elder law attorney. If a guardianship court proceeding is begun after the Durable Power of Attorney was signed by the principal, the authority of the agent is automatically suspended until the petition is dismissed, withdrawn or otherwise acted upon. The law requires that an agent receive notice of the Florida guardianship proceeding. If a Florida guardian is appointed, the durable Power of Attorney is no longer effective unless the court allows certain powers to continue. The power to make health care decisions, however, is not suspended unless the probate court specifically suspends this power. If the agent learns that Florida guardianship or incapacity proceedings have been initiated, he or she should consult with a Florida guardianship attorney, estate planning lawyer or elder law attorney. 

Yes. If the alleged incapacitated person executed a valid Durable Power of Attorney prior to his or her incapacity, it may not be necessary for the probate court to appoint a Florida guardian since the agent already has the authority to act for the principal. As long as the agent has all necessary powers, it may not be necessary to file Florida guardianship proceedings and, even when filed, guardianship may be averted by showing the probate court that a Durable Power of Attorney exists and that it is appropriate to allow the agent to act on the principal’s behalf.

 

If you need the assistance of a Florida estate planning attorney to avoid a guardianship by establishing a power of attorney, please contact us at 904-448-1969 or call us toll free at 866-510-9099.

A declaration of living will specifies a person’s wishes as to the provision or termination of medical procedures when the person is diagnosed with a terminal condition, has an end-stage condition, or is in a persistent vegetative state. A living will and a health care surrogate designation are termed “health care advance directives” because they are made in advance of incapacity and need. If a person is unable to understand or unable to communicate with a doctor, a living will is a legally enforceable method of making sure the person’s wishes are honored. Whether or not a person has a living will, a person’s agent may make health care decisions if the Durable Power of Attorney specifically gives this right. 

A Health Care Surrogate Designation is a document in which the principal designates someone else to make health care decisions if the principal is unable to make those decisions. Unlike a durable Power of Attorney, a health care surrogate decision-maker has no authority to act until such time as the attending physician has determined the principal lacks the capacity to make informed health care decisions. (In instances where the attending physician has a question as to whether the principal lacks capacity, a second physician must agree with the attending physician’s conclusion that the principal lacks the capacity to make medical decisions before a surrogate decision-maker’s authority is commenced.) Many medical providers prefer a designation of health care surrogate for health care decisions because the document is limited to health care. However, a Durable Power of Atotrney specifically for health care may enable the agent to assist the principal in health care decisions even though the principal may not completely lack capacity.  A Florida estate planning lawyer or elder law attorney can assist you with the preparation of a properly designed designation of health care surrogate. 

The authority of any agent under a Durable Power of Attorney automatically ends when one of the following things happens: (1) the principal dies; (2) the principal revokes the Power of Attorney, (3) when a court determines that the principal is totally or partially incapacitated and does not specifically provide that the durable Power of Attorney is to remain in force, (4) the purpose of the durable Power of Attorney is completed, or (5) the term of the durable Power of Attorney expires. In any of these instances, the Durable Power of Attorney is terminated. If, after having knowledge of any of these events, a person continues to act as attorney-in-fact, he or she is acting without authority.

The authority of an agent under a Power of Attorney automatically ends when one of the following things happens:  (1) the agent dies, (2) the agent resigns or is removed by the court, (3) the agent becomes incapacitated, or (4) the filing of a petition for dissolution of marriage if the agent is the principal’s spouse, unless the Power of Attorney provides otherwise.

The revocation must be in writing and may be done by a subsequent Power of Attorney or durable power of attorney.  Written notice should be served on the agent and any other party who might rely on the power of attorney. The notice should be served either by any form of mail that requires a signed receipt or by certain approved methods of personal delivery. Special rules exist for serving notice of revocation on banks and other financial institutions. Consult with your Florida estate planning lawyerto be sure proper procedures are followed under Florida law when it is necessary or desirable to revoke a durable power of attorney.

If a court proceeding to determine the principal’s incapacity has been filed or if someone is seeking to have the court appoint a guardian for the principal, the Durable Power of Attorney is automatically suspended and an agent must not continue to act until there has been a determination by the probate court of whether the agent will retain any powers to act. The power to make health care decisions, however, is not suspended unless the court specifically suspends this power.

The agent may ask the court for special permission to take care of the emergency even though the Power of Attorney remains otherwise suspended.  Contact your Florida estate planning or guardianship lawyer at 904-448-1969, toll free at 866-510-9099 FREE, or email us at Info@TheColemanLawFirm.net. 

An agent under a power of attorney or durable power of attorney is a fiduciary and as such has multiple duties when acting on behalf of the principal. These include an overriding duty to do only those acts authorized by the Power of Attorney, and when performing those acts to act in accordance with the principal’s reasonable expectations, to act in the principal’s best interest, and to attempt to preserve the principal’s estate plan.  The preservation of the estate plan is dependent on a number of factors, including the agent’s knowledge of the plan and the needs and desires of the principal.  If the agent under the durable power of attorney assumes responsibility for the pnncipal’s investments, the agent has a duty to invest and manage the assets of the principal as a prudent investor. This standard requires the agent to exercise reasonable care and caution in managing the assets of the principal. The agent must apply this standard to the overall investments and not to one specific asset. If an agent possesses special financial skills or expertise, he or she has an obligation to use those skills. The agent is required to keep careful records. Everything the attorney-in-fact does for the principal should be written down, and the agent should keep all receipts and copies of all correspondence, and consider logging phone calls so if the agent is questioned, records are available. Agents should consult with their lawyers to be sure they understand all of the duties applicable to them.  (Back to Top of Page)

 

Florida Statutes: Chapter 709 of the Florida Statutes contains the full Florida statutory law on Powers of Attorney. Chapter 744 deals with Florida guardianship law. Chapter 518 deals with investment of fiduciary funds and applies to the attorney in fact in the exercise of his or her “fiduciary duty.”

 

AFFIDAVIT OF ATTORNEY-IN-FACT

STATE OF FLORIDA

COUNTY OF _____________

Before me, the undersigned authority, personally appeared ______________________ (“Affiant”), who swore or affirmed that:

1. Affiant is the attorney-in-fact named in the Durable Power of Attorney executed by __________________ (“Principal”) on ____________________________.

2. This Durable Power of Attorney is currently exercisable by Affiant. The principal is domiciled in _______________________.

3. To the best of the Affiant’s knowledge after diligent search and inquiry:

a.  The Principal is not deceased; and

b.  There has been no revocation, partial or complete termination by adjudication of incapacity or by the occurrence of an event referenced in the durable power attorney, or suspension by initiation of proceedings to determine incapacity or to appoint a guardian.

4. Affiant agrees not to exercise any powers granted by the Durable Power of Attorney if Affiant attains knowledge that it has been revoked, partially or completely terminated, suspended, or is no longer valid because of the death or adjudication of incapacity of the Principal.

_________________________ Affiant/Attorney-in-fact

Sworn to (or affirmed) and subscribed before me this _____ day of _____________ by Affiant who is personally known to me or who produced _________________________ as identification.

___________________________ Notary Public

SEAL

This affidavit was prepared pursuant to Section 709.08(4), Florida Statutes (2011).