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What is a Power of Attorney (POA)?

Per Chapter 709.2102(9) of the Florida Statutes, a power of attorney is a legal document allowing a neutral party (an agent) to act on behalf of another person (the principal). Once a person holds a power of attorney in Florida, they can make decisions concerning the principal's business, assets, or personal matters as outlined in the agreement. The agent can undertake certain responsibilities for the principal, including accessing bank accounts, handling financial transactions, overseeing property sales, and signing official documents and contracts. The extent of their authority will depend on whether they are a Florida General Power of Attorney or their authority is limited.

Given the gravity of such agreements, it is important for individuals considering a POA to fully comprehend its implications. They must also meet Florida's legal requirements if setting up the POA in the state, which include having the capacity to enter the contract.

What Types of Power of Attorney Are Available in Florida?

Types of powers of attorney in Florida include:

  • Special or Limited Power of Attorney
  • Durable Power of Attorney
  • Healthcare or Medical Power of Attorney
  • General Power of Attorney

Each power of attorney serves a specific purpose and provides varying levels of authority to an agent based on a principal's objectives. For instance, a general power of attorney allows an agent to represent the principal in a broad range of activities, including financial matters. Meanwhile, a limited power of attorney confers the legal authority to act on behalf of the principal for a particular matter or purpose. Therefore, a person must determine the type of power of attorney that suits their specific needs. Below is a brief description of the POA types in Florida.

  • Special or Limited Power of Attorney: This type of power of attorney is designed for a specific purpose and ceases to be effective once the designated task is completed.
  • Durable Power of Attorney: Unlike other POAs, a Florida Durable Power of Attorney remains effective even if the principal becomes incapacitated.
  • Healthcare or Medical Power of Attorney: A Florida Medical Power of Attorney allows an agent to make medical decisions for a principal, including deciding what healthcare treatments may be administered to the principal.
  • General Power of Attorney: A general power of attorney grants an agent broad authority to conduct a principal's affairs. Typically, this POA type terminates upon the principal's incapacity unless it states otherwise.

Is Power of Attorney Public Record in Florida

No. Powers of attorney created in Florida are confidential documents ordinarily. The state does not impose a requirement to file or disclose such documents in the public domain. However, a POA might be recorded with a county recorder's office for a real estate transaction or filed during a legal proceeding to clear up conflicts related to an agent's authority. In such scenarios, the document becomes part of the state's public records and may be requested by any interested party.

How to Get Power of Attorney in Florida

Before a power of attorney can be established in Florida, certain conditions must be met, as per state laws:

  • Age Requirement: Both the principal and the agent must be at least 18 years old
  • Legal Understanding: Both parties must be of sound mind and fully comprehend the nature of a power of attorney, its implications, and its legal effects
  • Witness and Notary Requirements: The power of attorney document must be signed in the presence of at least two competent adults as witnesses and a notary public
  • Legal Counsel: While a lawyer is not mandatory for the signing of the power of attorney document under Florida state laws, the presence of two witnesses and a notary public is required

Fortunately, the process of obtaining a power of attorney in Florida is simple.

To create a power of attorney in Florida, the following steps can be taken:

Step 1. Determine the purpose and scope of the POA best suitable

The principal should thoroughly assess the purpose and scope of the power of attorney to determine the most suitable type. Conducting thorough research and seeking legal advice, if necessary, can provide the information needed to make well-informed decisions regarding the type of power of attorney that best fits the principal's needs. This would help the principal determine the extent of authority to delegate to the agent and the duration.

Alternatively, the principal may choose to engage the services of a knowledgeable attorney specializing in the power of attorney laws.

Step 2. Select the Agent or Attorney who will be named in the POA

After determining the most suitable type of power of attorney, the subsequent step involves choosing an agent, who may be an impartial individual or even a legal professional. The agent can also be a financial institution that possesses the power of trust and legally conducts business within the state. The agent must meet the criteria specified in Florida Statutes 709.2105.

It is crucial to ensure that the selected agent is capable, reliable, loyal, and well-informed, providing the principal with the assurance that all decisions made by the agent are in the principal's best interests.

Step 3. Create an official document

Once an agent has been chosen, individuals have the option to either draft a power of attorney document or complete the relevant government-provided form for the chosen type of POA. Individuals opting to create their document can either draft it themselves or enlist the services of an attorney for drafting. Conversely, those who choose to complete a pre-prepared form can reach out to the appropriate governing agency for assistance. For example, Florida’s Senate offers a medical power of attorney form, while the Florida Department of Highway Safety and Motor Vehicles provides a power of attorney for motor vehicle form.

Step 4. Signing the document

This step holds significant importance as it is the crucial factor that validates the document and renders it legally binding. According to Florida Statute 709.2105, the Power of Attorney (POA) document must be signed in the presence of two impartial witnesses and a notary public. In cases where the principal is incapacitated, the notary public is authorized to sign on behalf of the principal. Upon completion of this step, the written instrument transforms into a legally binding document.

Step 5. Secure Your Document

After completing the aforementioned steps, the principal can create copies of the agreement for all involved parties and retain one for their own records or future reference. If the individual has legal representation, a copy can also be provided to the attorney.

What are the Signing requirements for a Power of Attorney in Florida?

As previously mentioned, it is customary for both the principal and the agent to be at least 18 years of age, mentally competent, and fully aware of the consequences of establishing a Power of Attorney (POA). Additionally, the document should be signed in the presence of witnesses, ideally individuals with no personal interest in the matter, and a notary public. While having an attorney present is advisable, it is not a mandatory requirement.

Typically, the POA document should include the following key information:

  • The principal's name and address (the individual assigning their legal authority)
  • The name and contact address of the agent (the selected party authorized to act on behalf of the principal)
  • The duration and scope of the agent's authority
  • The start date of the POA and, where applicable, the termination date

If the power of attorney is durable, a statement indicating its validity and that it is not terminated by the principal's incapacity must be included.

How Much Does it Cost to Get a Power of Attorney in Florida?

The expense of obtaining a power of attorney in Florida is contingent upon several factors, including the specifics of the arrangement (such as scope and duration), whether the principal engages the services of an attorney, the level of expertise of the attorney, and at times, the geographical location. This implies that the cost can fluctuate based on these variables. For instance, while some legal practitioners may charge by the hour, others may offer a fixed fee structure, resulting in fees ranging from $200 to $500. Moreover, if one opts for the services of a highly experienced legal professional for a complex arrangement, the fees could potentially escalate to as much as $1,000.

Is it Necessary to Hire a Lawyer to Draft a POA in Florida?

No. While not compulsory, it is advisable for a principal to engage the services of a lawyer. This is particularly important for individuals without a legal background who are drafting a Power of Attorney (POA) for the first time, as having an expert can help identify blind spots, anticipate technical complexities, and provide valuable legal counsel.

Furthermore, with legal guidance, it is assumed that the agreement will likely adhere to legal standards. Additionally, it proves to be time-saving and efficient. The only drawback to hiring a legal expert is the additional cost involved. Despite this, individuals can review available options and fees to find a service that they can afford without undue financial strain.

Can I Revoke a Power of Attorney in Florida?

Yes, per Florida Statutes 709.2110 a principal can revoke the power of attorney when they want to as long as they are in the right frame of mind. However, the revocation has to be done by stating the revocation in a subsequently implemented power of attorney or the principal can simply express the decision in writing which is signed. Also, this would have to be done before two witnesses. The principal can then inform the agent and any other entity that needs to be informed and give such a copy of the document. Once the document is signed, the agent is released from the agreement previously entered and provided for by the revoked POA and there ceases to be a writ from the day of commencement stated on the document.

How long does a Power of Attorney last in Florida?

In Florida, the duration of a power of attorney is typically determined by factors such as the type of POA and the principal's preferences. Nevertheless, certain events can lead to the termination and invalidation of a POA. These events include:

  • Reaching the specified expiration date (for POAs with a designated end date)
  • Revocation of the agreement by the principal
  • Court-ordered determination of the principal's incapacity with the directive to cease the POA
  • Accomplishment of the intended purpose for establishing the Power of Attorney
  • Demise of the principal

Can I Appoint Multiple Agents under Power of Attorney in Florida?

Yes. A principal is granted the freedom to appoint two or more agents under the power of attorney, as per Florida Statutes 709.2111. These agents may function as co-agents or operate independently. If the principal stipulates that the agents are to collaborate, in the case of two agents, they are expected to work in unison. However, if there are more than two agents, decisions can be made through a voting process.

This type of arrangement presents both advantages and disadvantages. An advantage is the ability for one agent to substitute for another who is unavailable, while a drawback could be potential miscommunication or misunderstanding leading to operational issues. Hence, a principal considering this arrangement should thoroughly contemplate its implications before opting for multiple agents simultaneously.

What happens if I Do Not have a Power of Attorney and Become Incapacitated in Florida?

In the unfortunate situation where an individual without a power of attorney becomes incapacitated, the state steps in as caretaker (particularly regarding financial affairs) until a guardian or conservator is appointed by a probate court to oversee the estate. Once appointed, a guardian assumes the responsibility of making decisions on behalf of the property owner within the scope of authority granted by the court.

This scenario can result in higher costs compared to having a power of attorney in place. Having a power of attorney, on the other hand, ensures advance preparation for such circumstances and designates a trusted individual who is likely to make decisions in the best interest of the principal.

Does a Florida Power of Attorney Need to be Notarized?

Yes, as outlined in the state statutes, for a power of attorney document to hold legal validity, it must be notarized, signed by two competent witnesses, and a notary public. Failure to meet these requirements renders the document effectively invalid and devoid of any legal force.

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