Florida Durable Power of Attorney Laws

A power of attorney (POA) is a legal document that allows you (the “principal”) to grant certain authority to a trusted person (the “agent” or “co-agents,” also known as the “attorney-in-fact”) to act on your behalf to manage your financial affairs. If the power of attorney document includes statute-specific durability language, this authority remains in place even if you become incapacitated. In the estate-planning context, a durable power of attorney (DPOA) is an essential component of incapacity planning.

Incapacity Planning in Florida

A thorough estate plan includes your directions about how your estate should be handled at your death as well as during your lifetime if you become incapacitated. Including incapacity planning means you’ve provided instructions to your family members and loved ones not only for after your death but also for your potential incapacity. You need two different legal documents to fully plan for your incapacity. One appoints an agent to manage your financial matters (the focus of this article), while the other appoints an agent to manage your healthcare decisions.

Durable Power of Attorney for Financial Matters

If you become incapacitated and have a durable power of attorney, your agent can usually step in immediately with the authority you’ve granted to control your financial matters. The process can be quick and seamless, allowing continuity in the management of your financial affairs and interactions with financial institutions.

Without a durable power of attorney, your loved ones may have to initiate a guardianship proceeding so that the court can appoint a guardian to manage your finances during your incapacity. The court (probate division) will oversee the determination of your incapacity, appoint your guardian, and provide ongoing supervision of your guardian’s actions. Not only does this take time and money, but it also means you’ve given up control over who manages your financial matters.

Unless an exception applies, a Florida DPOA is effective at execution. Some states allow a springing power of attorney that only takes effect if you become incapacitated. Florida is not one of them. Possible exceptions to this are a military power of attorney (which may be effective at deployment) or a DPOA created before October 1, 2011.

Designation of Health Care Surrogate

The agent under a DPOA cannot make healthcare decisions on behalf of the principal. To name a trusted person to manage your healthcare if you become incapacitated, you need a Designation of Health Care Surrogate. This legal document works well for incapacity planning in combination with a living will, which is the legal document expressing your healthcare wishes. A Florida statutory form is available for both.

Unlike a DPOA for financial matters, your agent’s authority under a Designation of Healthcare Surrogate may be immediate or springing. The latter means it’s effective only if and when you become incapacitated.

Requirements for a Valid DPOA in Florida

Although Florida law doesn’t provide a safe-harbor DPOA statutory form, it does set out several requirements that must be met for a valid Florida power of attorney.

The Framework of a Valid DPOA

Florida Statutes outline qualifications and document execution requirements for an agent:

• The agent must be 18 years of age
• The DPOA must be signed by the principal
• The DPOA must be signed by two subscribing witnesses
• The DPOA must be acknowledged before a notary public

The notary public may sign on the principal’s behalf if the principal is unable to sign the DPOA.

Durability Language

Durability language is essential for incapacity planning. Without it, the authority granted in a power of attorney terminates at the principal’s incapacity, which would defeat the purpose. The statute provides safe-harbor durability language: “This durable power of attorney is not terminated by subsequent incapacity of the principal except as provided in chapter 709, Florida Statutes.” This language, or something similar, must be included for a POA to be durable.

Duties, Powers, and Limitations

In Florida, a durable power of attorney grants an agent (or co-agents) broad authority to manage financial and legal affairs. That authority is carefully defined, subject to strict fiduciary duties, and limited by statute. Understanding the fiduciary duties an agent must meet, the scope of an agent’s powers, and the limitations of a DPOA is essential to ensuring the document works within your estate plan strategy. Let’s take a look at each one:

An Agent’s Duties

An agent under a DPOA is a fiduciary. The agent must act in the principal’s best interests and follow specific statutory duties. These duties are fully enumerated in the Florida Statutes. Highlighted duties include:

• The agent must act in good faith
• The agent must act within the scope of authority
• The agent must follow the principal’s instructions or intent when known and otherwise act in the principal’s best interest
• The agent must be loyal to the principal and avoid conflicts of interest
• The agent must keep records
• The agent must attempt to preserve the principal’s estate plan, if known

In addition to covering all of the agent’s duties, the statute also addresses the agent’s potential liability. An agent who acts in good faith is not liable to a beneficiary of the principal’s estate plan for failure to preserve it. Absent a breach of duty to the principal, an agent is not liable if the value of the principal’s property declines.

Granting Power to Your Agent

The authority of the agent is not unlimited. It depends on the powers you specify in the DPOA, with heightened requirements for more powerful actions.

Under the durable power of attorney, your agent can handle a wide range of financial and legal matters on your behalf to the extent you’ve authorized. These powers may include managing bank accounts and financial transactions, paying bills, handling investments or your retirement plan, accessing your safe-deposit box, and conducting real estate transactions.

Under Florida law, some powers must be specifically stated and separately signed or initialed by the principal. These powers include making gifts, creating or changing trusts, modifying beneficiary designations, or waiving rights.

Some powers cannot legally be delegated, while others are simply outside the scope of a DPOA. For example, an agent cannot act on the principal’s behalf to:

• Make, change or revoke a will
• Vote in public elections
• Make healthcare decisions
• Perform purely personal acts or personal services

This is not an exhaustive list.

Limitations of a DPOA

A Florida DPOA is a powerful tool, but its power is limited to financial and legal matters. The agent’s authority is limited to the powers the document specifically grants, subject to statutory requirements and restrictions. Some authority may not be delegated. The agent’s authority terminates immediately when the principal dies.

A well-drafted DPOA anticipates and addresses these potential gaps and limitations. It can work in conjunction with other estate planning strategies.

How To Make a Durable Power of Attorney

Some states provide a fill-in-the-blank statutory form DPOA, but Florida is not one of them. You may find that the efficiency and convenience of an online Durable Power of Attorney form suits your needs. If you want to ensure that your DPOA for financial matters coordinates with your other estate planning strategies, you may want to consult with a Florida estate planning attorney or elder law attorney.

Terminating a Durable Power of Attorney

A DPOA is designed to last for the principal’s incapacity, but it doesn’t last forever. A DPOA terminates in several ways, including when:

• The principal dies
• The principal revokes the power of attorney through a formal revocation
• The power of attorney terminates by its terms
• The purpose of the power of attorney is accomplished
• The agent’s authority terminates, and the power of attorney does not provide for a successor

An agent’s authority terminates when:

• The agent dies, becomes incapacitated, resigns, or a court removes the agent
• The agent is the principal’s spouse and an action is filed to end the marriage or legally separate (unless the power of attorney provides otherwise).
• The power of attorney terminates

Make sure when a DPOA terminates is clearly defined on the document.

Work With an Experienced Florida Estate Planning Attorney

Meeting with a lawyer can help you understand your options and how to best protect you and your loved ones with a comprehensive estate plan that includes incapacity planning. An elder law attorney or estate planning attorney in Florida can ensure that your Durable Power of Attorney works alongside your other estate planning documents.