Power of Attorney Explained

As per the online legal dictionary, the definition of a power of attorney is:
A written document that allows one person to act on another’s behalf in legal or business matters. A power of attorney grants another person express authority to perform certain acts, such as signing one’s name or executing written agreements on the person’s behalf. Some people can typically grant their spouses or grown children limited powers of attorney for health care or financial matters, while others allow their attorneys-at-law to act on their behalf for most business transactions.
Powers of attorney are important. Without them, a person may not have the power to legally enter into a contract with the person’s name , even though the other persons were acting with the person’s knowledge and permission. Powers of attorney are useful in the case of an emergency when one of the parties to a contract or agreement may have been injured and is unable to completely resume business at the previous time’s speed. This allows the business/rental transaction to be continue while the injured party completes recovery.
Florida requires a principle to give express permission to each proxy of the power of attorney to act on the individual’s behalf. When creating a Florida power of attorney, many rules must be followed by both the principal and the agent. If the rules are not followed, the power of attorney could be revoked or canceled.

Power of Attorney Types in Florida

There are different types of power of attorney that can be used in Florida depending on your particular circumstances and goals in executing a power of attorney.
General Power of Attorney – A general power of attorney is usually a broad power that authorizes the agent to act on behalf of the principal. This type of power of attorney gives the agent authority to do anything the principal could do, such as banking, accounting, transportation, real property transactions, retirement benefit transactions, estate transactions, and health services decisions. It does not authorize the agent to make healthcare decisions on the principal’s behalf.
Durable Power of Attorney – A durable power of attorney goes into effect as soon as it has been signed and dated. During the life of the principal, this type of power of attorney allows the principal to delegate powers over the affairs and assets to his or her agent. This is exceptionally useful for an individual who may become incapacitated. For example, an elderly person with Alzheimer’s, who has not executed a durable power of attorney, may not be allowed to sign a check. Without a durable power of attorney, individuals could be required to petition a court to give someone the legal ability to handle the finances of their loved one.
Limited Power of Attorney – This type of power of attorney gives the agent the authority to act on behalf of the principal only in specific legal or financial matters. For example, a person may wish to delegate his or her authority to their child for the purpose of completing a real property transaction. The limited power of attorney would be drafted specifically for that single purpose, giving the agent the authority to handle all the paperwork and other matters related to the transaction.
Springing Power of Attorney – Under a springing power of attorney, the authority given to the agent only begins if a specific event occurs. For example, if a person is suffering from Alzheimer’s, the person may wish for their spouse and adult child to have access to their bank accounts for the payment of household expenses, until such time that such access is absolutely necessary. In such a case, a springing power of attorney should be executed that specifies, to receive access to the principal’s financial assets, the adult child and spouse must show proof of the person’s medical condition before receiving it. Such proof could come in the form of a letter from a physician stating that the person suffers from Alzheimer’s that is sufficiently advanced enough to require assistance with their financial assets.
All funds managed under the authority of a general power of attorney are required to be kept separate from the funds of the agent. Failure to do so may result in a charge of civil theft.

Advantages of a Power of Attorney

As detailed below, the principle benefits of having a power of attorney in place before you need it are ease and flexibility. The health care surrogate and durable power of attorney allow for the ability of a trusted relative to step in and handle important life decisions in the event that you are incapcity to do so yourself. The documents must be prepared ahead of time to be effective, and they must be used in the way that the law allows.
There are two areas, however, where having a power of attorney in place for your family member can be particularly beneficial. The first is their medical decision-making. It is very common, especially with older adults, for there to be differing opinions on things such as the level of health care needed, when to move into assisted living, etc. Having the health care surrogate form in place can avoid much confusion and family conflict should any of those things arise. The second area that is greatly enhanced by having a power of attorney is the ability to handle financial decisions. In many cases, as an individual ages and is more prone to elder scams, it is vital to have these powers of attorney in place to prevent financial abuse.

Process for Getting a Free POA Form

  • – The easiest way to obtain a free power of attorney form is to use an online resource. These electronic forms are very much similar to the forms that you will find at your local county courthouse, only they are in a downloadable and printer-friendly format. Additionally, electronic forms are useful if you need a power of attorney quickly since some websites have the ability to email the forms to you immediately after paying a nominal fee.
  • – If you do not want to use online resources, most government websites, such as USA.gov, have a free section where you can look for a power of attorney form. Similar to the previous step, it is important that you ensure you are downloading the most recent version of the form available. An outdated power of attorney form may not be accepted by your bank or county clerk.
  • – You may also be able to find a free and up-to-date Florida power of attorney form at a local county courthouse, bank or local library.

If you do not understand the requirements or provisions of a Florida power of attorney, it is highly recommended that you contact a qualified estate planning attorney to explain those provisions and how they apply to your situation before executing a power of attorney.

How to Accurately Complete a Power of Attorney Form

Even with a good deal, you are undertaking a grave mistake if you do not follow this rules.
Even when forms are easy to fill out a seemingly poor completed attorney drafted form can overcome the apparent ease. But it can also relegate your family to expensive and difficult litigation. The Statute as written does not leave much room for error, nor does it leave any room for someone to go back and amend a form after the fact. For instance: All lines must be completed. If there is nothing on a line, None will suffice in its place. Do not write only a zero in a line. It is always better to write none. If you sign another’s form or use a generic form, make sure they have filled it out properly. Prospective lenders, Sherriff’s, etc., all have the right to reject it if it is not accurately completed. There is also a strange provision in the rules pertaining to a Florida power of attorney. Even though you may have had one done in another state or had a document prior to 2011, when the statute was modified to create the Game Changer form, you will benefit from knowing the following: Before you sign a Power of Attorney in Florida, be careful that the document is current and follows the Statute. Suppose you have used a Florida Power of Attorney form some years before. Prior to 2011, Florida used a different form and rules. This is not that unusual, because other states still use a form similar to the older Florida form. However, be advised, that if you plan on simply using the old power of attorney or even a power of attorney done out of state, prior to 2011, your document may not be honored today . This is true, even if you signed an old power of attorney done in Florida. With any durable power of attorney, be aware that all signatures must be done properly. Make sure, for instance that if you are an attorney in fact for someone, that the person comes to you, in person and signs the document while you are there. Also, your signature must be done with the same ink as the name above it. If there are two people who are attorneys in fact, both persons must sign in the same color ink. Further, as with any document, be sure to sign in ink, do not use an electronic signature on the document. Make sure that the person granting the power of attorney completes the document fully. It is ideal that all lines are completed. It is acceptable to leave a line blank, but never leave just a zero. According to the Florida Statute, the word none for instance, should be typed or handwritten on the line as there must be some indication that the line was not left blank for a reason. Further, do not leave the line blank; fill it in properly, but do not just put a zero on the line. This includes when it is a numeric field. In addition, be sure, if possible that a notary public is present when the document is signed. Make sure to remember the Marriage License Rule, which requires that ID is shown. With a Durable Power of Attorney, once again, many people do not realize that this document can cease to exist at the termination of the grantor’s life. And so, it is imperative that the durable power of attorney is signed as soon as possible, to prevent this from happening.

Legal Conditions in Florida

Florida does not prescribe any legal formalities for the execution of a power of attorney. A Florida power of attorney therefore does not have to be in writing, witnessed, acknowledged or sealed. The principal may execute the document in writing or orally, in the presence or absence of witnesses, and in the presence or absence of a notary public or other officer.
While a Florida power of attorney does not have to be in writing, there are significant advantages to this. If the power of attorney is not in writing, the agent or statutory agent may not do the following (unless there are separate oral authorizations):
For many, the most significant advantage to having a written power of attorney is the ability to authorize the agent to make certain legal or financial decisions concerning specific types of property. By specifically naming the authority these decisions, the principal is saying that the agent has the authority to do what he or she feels is in the best interest of the principal.

Avoiding Common Mistakes

One common mistake people make with a power of attorney is to incorrectly name the type of agent. In my practice, people will often fill out a power of attorney and put their wife or husband as the "Attorney-in-Fact" – when actually the legal term is "Agent." This is not a big mistake as Florida statutes allows for the name "Attorney-in-Fact" to be used, but it still needlessly clouds things when the document needs to be used.
Another common mistake people get confused with is thinking that a power of attorney has to be witnessed in the same way a will must be . Again, another provision in Florida’s laws for powers of attorney allows for notarization of the principal, the agent, as well as the signature of the one taking the power of attorney. There is no requirement that you need witnesses, but some people confuse the two.
Another mistake, which seems to happen all the time, is that people fail to sign each page of the power of attorney. Attorneys who are wise to this will routinely have their power of attorneys require that the principal sign each page, as the failure to do so could invalidate the power of attorney in certain circumstances.