09/02/2023
WHAT ARE SOME USES OF A POWER OF ATTORNEY?
A power of attorney may be used to give another the right to sell a car, home or other property. A power of attorney might be used to allow another to access bank accounts, sign a contract, make health care decisions, handle financial transactions or sign legal documents for the principal.
A power of attorney may give others the right to do almost any legal act that the maker of the power of attorney could do, including the ability to create trusts and make gifts.
WHERE MAY A PERSON OBTAIN A POWER OF ATTORNEY?
A power of attorney is an important and powerful legal document, as it is authority for someone to act in someone else’s legal capacity. It should be drawn by a lawyer to meet the person’s specific circumstances. Pre-printed forms may fail to provide the protection or authority desired.
DOES A POWER OF ATTORNEY NEED WITNESSES OR A NOTARY?
A power of attorney must be signed by the principal, by two witnesses to the principal’s signature, and a notary must acknowledge the principal’s signature for the power of attorney to be properly executed and valid under Florida law. There are exceptions for military powers of attorney and for powers of attorney created under the laws of another state.
WHAT IS A “PRINCIPAL”
The “principal” is the maker of the power of attorney – the person who is delegating authority to another.
This is the person who is allowing someone else to act on his or her behalf.
WHAT IS AN “AGENT”
The “agent” is the recipient of the power of attorney – the party who is given the power to act on behalf of the principal. The agent is sometimes referred to as an “attorney-in-fact.” The term “attorney-in-fact” does not mean the person is a lawyer.
WHAT IS A “THIRD PARTY”
A “third party” is a person or institution with whom the agent has dealings on behalf of the principal.
Examples include a bank, a doctor, the buyer of property that the agent is selling for the principal, a broker, or anyone else with whom the agent must deal on behalf of the principal.
WHAT IS A “LIMITED POWER OF ATTORNEY”
A “limited power of attorney” gives the agent authority to conduct a specific act.
For example, a person might use a limited power of attorney to sell a home in another state by delegating authority to another person to handle the transaction locally. Such a power could be “limited” to selling the home or to other specified acts.
WHAT IS A “GENERAL POWER OF ATTORNEY”
A “general power of attorney” typically gives the agent very broad powers to perform any legal act on behalf of the principal. A specific list of the types of activities the agent is authorized to perform must be included in the document.
WHAT IS A “DURABLE POWER OF ATTORNEY”
A power of attorney terminates if the principal becomes incapacitated, unless it is a special kind of power of attorney known as a “durable power of attorney.” A durable power of attorney remains effective even if a person becomes incapacitated. However, there are certain exceptions specified in Florida law when a durable power of attorney may not be used for an incapacitated principal. A durable power of attorney must contain special wording that provides the power survives the incapacity of the principal. Most powers of attorney granted today are durable.
MUST A PERSON BE COMPETENT TO SIGN A POWER OF ATTORNEY?
Yes. The principal must understand what he or she is signing at the time the document is signed. The principal must understand the effect of a power of attorney, to whom the power of attorney is being given and what property may be affected by the power of attorney.
WHO MAY SERVE AS AN AGENT?
Any competent person 18 years of age or older may serve as an agent. Agents should be chosen for reliability and trustworthiness. Certain financial institutions with trust powers also may serve as agents.
WHAT HAPPENS IF THE POWER OF ATTORNEY WAS CREATED UNDER THE LAWS OF ANOTHER STATE?
If the power of attorney was properly executed under the other state’s laws, then it may be used in Florida, but its use will be subject to Florida’s Power of Attorney Act and other state laws. The agent may act only as authorized by Florida law and the terms of the power of attorney. There are additional requirements for real estate transactions in Florida, and if the power of attorney does not comply with those requirements its use may be limited to banking and other non-real estate transactions. The third party also may request an opinion of counsel or an affidavit that the power of attorney was properly executed in accordance with the laws of the other state.
