What is a General Power Attorney?

A general power of attorney is a legal document that transfers authority from one person to another. In the document, the principal (the maker of a power of attorney) grants an agent the broad powers to perform any legal act on its behalf. This means the agent can make decisions about their healthcare, sell the principal’s assets, and manage their bank accounts and government benefits like Social Security. A Florida Power of Attorney document must include a specific list of the activities the agent is authorized to perform. Per Florida Statutes 709.2114, an agent’s duties include:

• Preserving the principal’s estate plan
• Cooperate with third parties that act in the principal’s best interest
• Keeping record of all receipts, disbursements, and transactions made on behalf of the principal
• Create and maintain an accurate inventory when the principal’s safe deposit box is accessed.

Legal requirements for creating a General Power of Attorney in Florida

Below are the legal requirements for creating a general POA in Florida:

• The principal must be mentally capable of making decisions
• The principal must select an agent who is a natural person aged 18 or older or a financial institution with trust powers located and conducting trust business in Florida.
• The principal and two subscribing witnesses must sign the power of attorney before a notary public.
• When the principal cannot sign a power of attorney, the notary public can sign the principal’s name on the document.

Why Would You Need a General Power of Attorney in Florida?

Florida residents need a general power of attorney if they:

• Are getting older
• Have a high-risk job
• Do not have the expertise to handle complex issues.
• Are traveling or would be physically unavailable for a particular function.
• Have a health-related problem that might soon lead to incapacitation.

Benefits of having a Power of Attorney in place

Creating a general POA in Florida allows individuals to appoint someone they trust to handle their affairs when incapacitated. The person's personal preferences will be considered when they become incapacitated, reducing the possibility of conflict among family members who want to take advantage of said person.

Potential risks of not having a Power of Attorney

One potential risk of not having a POA is that a person can't choose who will make decisions on their behalf if they become incapacitated. This will prevent the individual from determining how they want their assets handled. Not having a POA can also cause rifts between family members if there is no reference point and they hold conflicting ideas of how the matter should best be handled.

How to Use General Power of Attorney in Florida?

Florida residents can execute and record a POA by following the steps below:

Step 1: Meet the legal requirements for using a general power of attorney.

In Florida, only individuals at least 18 years old and have a sound mind, as interpreted by the state court system, are eligible for POA. The principal and two competent adult witnesses must sign the POA before a notary public.

Step 2: Select the agent for the POA document.

The principal must select an agent who is a natural person aged 18 or older or a financial institution with trust powers located and conducting trust business in Florida. The agent must be trustworthy and able to make decisions in the principal’s best interests. Individuals can choose anyone as their agent (e.g., a spouse, close relative, best friend, or professional).

Step 3: Draft the POA and specify the agent’s responsibilities.

Individuals can draft their POA using downloadable government and third-party templates. However, it is advisable to consult a Florida attorney to help with the process. This helps ensure the document meets Florida’s legal requirements and avoids future legal consequences. The POA must include specific details on the agent's responsibilities.

Step 4: Record or notarize the document.

Florida law requires that the principal and two subscribing witnesses sign the POA in the presence of a notary public. When the principal cannot sign a power of attorney, the notary public can sign the principal’s name on the document.

After notarizing the documents, the principal must record them with the appropriate record custodian. For example, real estate POAs are recorded with the Clerk of the Circuit Court and Comptroller in the county where the property is located (Florida Statutes 709.2106). Principals can keep physical and electronic copies of the POA. Physical copies can be kept safely in the principal’s home. Also, the principal can send copies of their POA to their lawyers or close friends.

Who Should be selected as the Agent for this Type of PofA?

Individuals can name anyone as their general P of A agent. Most people choose their spouse, a family member, or a close friend. The choice of a general power of attorney agent isn't based on selecting close relatives or friends; instead, it's about choosing someone capable of representing one's best interests. Florida residents should choose someone trustworthy and with whom they feel comfortable discussing tangible and intangible matters. This helps alleviate unnecessary pressure or concern about the agent deviating from the terms of the POA. Below are a few qualities to look for when selecting a general POA agent:

• Trustworthiness: This is one of the most important qualities an agent must possess because a general POA grants an agent broad powers, giving them comprehensive control over assets or critical end-of-life treatment decisions. Entrusting these sensitive matters to someone trustworthy ensures they act in the principal’s best interest, especially during vulnerable moments.
• Availability: Select an agent who is physically accessible and mentally equipped to handle the responsibilities entrusted to them. Choosing someone who is close by ensures matters are handled promptly.
• Willingness: Always choose an agent who is willing to serve. While choosing agents based on their capabilities is good, take note of their readiness to shoulder the responsibilities and act in the principal’s best interest when necessary.
• Assertiveness: Choose an agent who can be resilient and stand firm against external pressures to ensure decisions are made in the principal’s best interests.
• Shared values: Individuals should choose agents whose core beliefs regarding essential matters like finances and medical preferences are similar to theirs. They should choose agents who understand and respect their values and represent their best interests regardless of personal bias.
• Informed awareness: The agent must comprehensively know the principal’s circumstances. For example, they must know the principal's insurance coverages, wills, trusts, medications, preexisting conditions, assets, investments, and debts. Choosing a well-informed agency will ensure they make decisions that genuinely reflect the principal’s best interests and unique situation.

Who Can Be an Agent?

Per Florida Statutes 709.2105, anyone 18 years of age or older or any financial institution located in Florida with trust powers and authority to conduct trust business in the state can act as an agent. Principals should choose agents based on reliability and trustworthiness.

Can there be More than One Agent?

Per Florida Statutes 709.2111, a principal can designate two or more persons to act as its agents. Each agent can exercise its authority independently unless the power of attorney states otherwise. Florida law also permits principals to designate one or more successor agents. A successor agent can only act when an agent dies, declines to serve, resigns, becomes incapacitated, or is not qualified to serve. There are no legal requirements for appointing multiple agents in Florida.

Advantages of Having Multiple Agents

Having multiple agents makes work less burdensome. It allows for responsibilities to be spread out rather than all finances and assets handled by one person. Additionally, the agents can work together to make the best decisions.

Another benefit of having multiple agents is mutual oversight. Although the principal might appoint trustworthy agents, one of them may attempt to make a suboptimal decision. However, the other agent can intervene to discuss the decision and ensure decisions align with the principal’s best interests.

Disadvantages of having multiple agents

One major disadvantage of appointing multiple agents in a power of attorney is the possibility of conflict arising between co-agents if they have differing opinions on the course of action to pursue. This can slow the decision-making process, negatively affecting the principal.

Florida law authorizes agents to exercise their powers independently. This tends to make one agent unaware of what the other agent is doing, creating confusion.

Procedures for specifying the roles and responsibilities of each agent

Follow the steps below:

• Decide the types of POA to create
• Decide who will be the best agent for each POAs
• State the duration of the POA
• Clearly outline the specific duties of each agent in the POA
• Consult an expert for guidance

How to Get General Power of Attorney in Florida

Florida residents can get general power of attorney by following the following steps:

• Decide the best POA that suits your needs.
• Decide who the agent will be and speak to them if they want to play that role. Also, the level of authority the agent will have should be decided.
• Get a power of attorney form. Individuals can work with an attorney, use estate planning software, or download forms online from government or third-party websites. For example, Florida residents can access the following forms online:
  • Healthcare Surrogate Designation
  • Florida Department of Revenue Power of Attorney
  • Florida Department of Highway Safety and Motor Vehicles Power of Attorney
  • Power of Attorney for Representation before the Value Adjustment Board
• Complete the form, sign it, and have it notarized. The POA must also include the signatures of two subscribing witnesses.
• Provide the POA to your agent and other interested parties, like financial institutions and the relevant Clerk of the Circuit Court & Comptroller's office.
• Keep the POA form safe with other estate planning documents.
• Keep the POA updated as circumstances change.

Potential Fees and Costs Associated With Creating a Power of Attorney in Florida

The cost of creating a power of attorney in Florida varies based on factors like the complexity of the principal’s needs and the professional hired to draft it. For example, the fees associated with working with an attorney to create a POA can be between $200 and $500. However, individuals can use downloadable templates online to make a POA for free. Per Florida Statutes 117.05(2)(a), notary fees for a power of attorney cost $10.

How to write General Power of Attorney in Florida

Individuals can easily write a general power of attorney themselves by following the format below:

The Opening Paragraph

This contains basic information about the principal and the agent(s). It may read thus:

As of today, ___/___/_____, I, ______________________, residing at ___________________ City of ______________________, State of ______________________, appoint the following as my agent, whom I trust with my tangible or intangible assets immediately upon the authorization of this form. I grant the power to act as if I were personally present to ______, residing at _____________________________City of ______________________, State of ______________________.

The next few sentences should clearly describe the specific authority granted to the attorney-in-fact. It may proceed as follows:

I, _________________________, the Principal, affix my signature to this power of attorney this ________ day of ________________, 20_____________. Having been duly sworn, I attest to the undersigned authority that I sign and authorize this document as my power of attorney. I do so willingly or by directing another to sign on my behalf as a free and voluntary act for the stated purposes outlined in the power of attorney. Additionally, I am of legal age, sound mind, and not subject to any undue influence or constraint.
_________________________
Signature of Principal
I, ___________________________ have reviewed the enclosed power of attorney and confirm that I am the individual identified as the agent for the principal. I hereby acknowledge and consent to my appointment as agent. I understand that while acting as an agent, I am obligated to utilize the powers for the principal's benefit, maintain the principal's assets separate from my own, exercise reasonable care and diligence, and maintain thorough and precise records of all transactions, receipts, and expenditures conducted on behalf of the principal.
________________________________ __________________________________
Signature of Attorney-in-Fact Date

Witness Attestation

I, ______________________, the initial witness, and I ______________________the second witness, hereby affix our signatures to the foregoing power of attorney. We affirm under oath to the undersigned authority that the principal signed and executed this document as their own. Furthermore, in the presence and hearing of the principal, we witness the principal signing this power of attorney. To the best of our knowledge, the principal is eighteen or older, of sound mind, and not under any constraint or undue influence.
______________________________ ______________________________
Signature of First Witness Signature of Second Witness

The Acknowledgment Section

This section is for the notary public. Use the format below for this section.

In the State of ___________ County of ______________________________, the undersigned ______________________________, the Principal, duly subscribed, sworn and acknowledged before me. Witnessed and subscribed before me by ______________________, witness, on this ______________________ day of ________________________.
______________________________
Notary Signature Notary Public
In and for the County of ______________________________
State of ______________________________
My commission expires: ______________________________ {Seal}

How Often Must I Update My General power of attorney?

Florida law does not specify when a general power of attorney should be updated. However, updating a POA under the following circumstances is advisable:

• Life changes: As a principal age, several life events, such as marriage, birth, divorce, or changes in state law, can occur that necessitate updating a POA. For example, a principal can get married and want to designate their spouse as their agent.
• Problems with the current agent: A principal having issues with their agent can choose to update their POA with the name of a new agent. A new agent will be appointed if the current agent is deceased, incapable of handling the responsibility, is in jail, under investigation, or no longer trustworthy.
• Changes to a power of attorney: A principal’s life may be the same, or they may still trust their agent, but they might want to add or remove certain instructions from their POA. For example, a principal who wants the agent to have more or less authority will have to update their POA.

Individuals who want to update their existing power of attorney form must revoke their current document. Then, create a new POA that includes the updates they want to make.

Recommendations on how to review and update a power of attorney regularly

• Consult an attorney when reviewing and updating a POA.
• Ensure to check the latest regulations in Florida and how they affect the document.

Does the Agent have to Follow the Principal’s Wishes in General Power of Attorney?

Yes, the agent must follow the principal wishes as stated in the general power of attorney to the best of their ability. This is why choosing a trustworthy agent is important.

Limitations on Agent Power and Authority

Per Florida Statues 709.2201, an agent does not have the power or authority to make the following decisions on behalf of a principal:

• Vote in public elections on the principal’s behalf
• Execute or revoke any codicil or will for the principal
• Make any affidavit as to the personal knowledge of the principal
• Perform obligations outlined in a contract that necessitates the principal's direct personal involvement.
• Exercise powers and authority vested in the principal as trustee or fiduciary appointed by the court.

What Decision-Making Power Does the General P of A Grant The Agent?

The decision-making power a general POA grants an agent differs depending on the specific type. For example, a real estate POA grants the agent the authority to make the following decisions on behalf of the principal:

• Execute stock powers and delegate to a transfer agent the authority to register securities, such as stocks or bonds, into or out of the principal’s name.
• Convey or mortgage homestead property. If the principal is married, a joinder of the principal’s spouse or the spouse’s guardian is required.
• The agent can engage in the following transactions if the POA clearly states that the agent has the authority to conduct banking or investment transactions (Florida Statues 709.2208):
  • Receive certificates and other evidence of ownership of investment instruments.
  • Buy, sell, and exchange investment instruments like stocks, bonds, or mutual funds.
  • Create, continue, change, or terminate a financial account or investment instrument.
  • Sell commodity futures contracts and call and put options on stocks and stock indexes.
  • Purchase, endorse, and negotiate bank drafts, cashier’s, official, or counter checks, and money orders.
  • Contract for services (like renting a space in a vault or safe deposit box) provided by a financial institution.
  • Receive documents like statements of account, vouchers, or notices from a financial institution and act concerning them.
  • Transfer funds, collect transaction proceeds, and honor drafts issued by a person to the principal and ensure payment is made promptly before the specified deadline.
  • Withdraw the principal’s money (by check, electronic funds transfer, or order) or property deposited with or left in the custody of a financial institution.

When Does The General P of A Start and How Long Does it Last?

A general power of attorney becomes effective once the principal signs it. Sometimes, the principal can specify a future date, event, or contingency to activate a general POA (Florida Statutes 709.2108). Per Florida Statutes 709.2109, a general POA expires when the:

• The power of attorney expires.
• The purpose of the power of attorney is accomplished
• The agent’s authority terminates, and the POA does not state that another agent should act under that authority.
• The principal dies, becomes incapacitated, is adjudicated totally or partially incapacitated by a court, and revokes the power of attorney.

Can the General P of A be revoked?

Yes. A principal can revoke a general power of attorney to terminate the document or the agent’s authority. Per Florida Statutes 709.2110, a principal can revoke a POA by expressing the revocation in writing, which could be done in a subsequently executed power of attorney. The notice of the revocation should be served on the agent and any other party that relies on the power. The service can be done by mail or approved methods of personal delivery. Note that special rules apply to serving notices of revocation on financial institutions. Consult a lawyer to ensure proper procedures are followed.