A will speaks after you die. A power of attorney speaks while you are alive but unable, or unavailable, to act for yourself. For most Florida families, it is one of the most consequential documents in an estate plan, and one of the least understood.
What a power of attorney is
A power of attorney is a legal document in which you (the principal) authorize another person (your agent) to act on your behalf. Florida powers of attorney are governed by Part II of Chapter 709, Florida Statutes, known as the Florida Power of Attorney Act. Under section 709.2105(1), the agent must be a natural person who is 18 or older, or a financial institution with trust powers, a place of business in Florida, and authorization to conduct trust business in the state.
Durable vs. non-durable
The word that matters most is durable. Under section 709.2104, a power of attorney is durable if it contains the words “This durable power of attorney is not terminated by subsequent incapacity of the principal except as provided in chapter 709, Florida Statutes,” or similar words showing the principal’s intent that the authority survives incapacity. Under section 709.2109(1)(b), a power of attorney that is not durable terminates when the principal becomes incapacitated, which is precisely when many families need it most.
Florida does not allow “springing” powers of attorney
Some states permit a power of attorney that only takes effect upon a future event, such as incapacity. Florida does not. Under section 709.2108, a power of attorney is exercisable when executed, and a power of attorney that provides it becomes effective at a future date or upon a future event or contingency is ineffective. (A narrow exception in section 709.2108(2) preserves certain springing powers executed before October 1, 2011.)
How a Florida power of attorney must be signed
Under section 709.2105(2), a power of attorney must be signed by the principal and by two subscribing witnesses, and be acknowledged by the principal before a notary public (or as otherwise provided in section 695.03). If the principal is physically unable to sign, section 709.2105(3) allows the notary to sign the principal’s name under the conditions the statute specifies.
What happens without one
If you become incapacitated without a valid durable power of attorney, your family may need to pursue a court process to gain legal authority over your affairs, which can be slower, more public, and more expensive than planning ahead.
Choosing your agent
Your agent will potentially control your bank accounts, property, and financial life. The legal document matters, and so does the human choice. Considerations include trustworthiness, financial competence, proximity, and willingness to serve. Note also that under section 709.2202, certain powers, such as making gifts or changing beneficiary designations, require the principal’s separate signature or initials next to each specific enumeration.
Frequently asked questions
Does a power of attorney cover medical decisions in Florida?
Health care decisions are typically addressed through a separate document, a designation of health care surrogate. Many complete estate plans include both.
Does a power of attorney survive death?
No. Under section 709.2109(1)(a), a power of attorney terminates when the principal dies. At that point, the personal representative appointed through the probate process takes over.
Can I revoke a power of attorney?
Yes. Under section 709.2109(1)(d), a power of attorney terminates when the principal revokes it. How to do that effectively is worth discussing with an attorney.
Talk to a Bradenton estate planning attorney
A power of attorney is not a form to download and hope for the best. It is a grant of real authority that should be tailored to your family and your finances. The estate planning attorneys at McNary Law prepare powers of attorney as part of complete estate plans for clients in Bradenton, Sarasota, Lakewood Ranch, and throughout Manatee and Sarasota counties, with virtual services available statewide. Click here to send us a message or call us today at 941-345-1662 to schedule a consultation.
This article is for general informational purposes only and does not constitute legal advice. Reading this article does not create an attorney-client relationship.