Whether you need to designate someone to represent you in real estate closing or name a loved one to handle your financial affairs in the event of incapacitation, a power of attorney (POA) is a valuable legal tool.
Is probate necessary if you have a Florida power of attorney (POA)? Read on to find out.
Florida Power of Attorney – Understanding the Concept
A power of attorney (POA) is a legal document in which you (the principal) grant authority to another person to make decisions on your behalf. The person designated is referred to as the “agent” or “attorney-in-fact.”
The level of power granted to the agent depends on the document’s provisions. Depending on how the principal allows the agent to handle his or her personal affairs, the agent’s legal authority can be limited or broad.
While acting as the principal’s proxy, the agent must uphold a fiduciary duty, acting only in the best interest of the subject of the POA. Often used in estate planning, you can use a POA to appoint an agent to handle decisions about your family, finances, or even healthcare.
Additionally, the document must have an effective date and an end date. It is possible to draft POAs with distinct dates to fulfill different purposes.
For example, Florida law allows you to execute a durable POA to grant an agent the authority to act on your behalf if you become incapacitated or severely ill.
Conversely, you can draft a non-durable POA exclusively to authorize someone else to represent you in a business transaction outside of the state. Before executing a POA, make sure to seek expert legal guidance from a seasoned Florida attorney.
Do I Need Probate If I Have Power of Attorney in Florida? – The Verdict
If the principal of a POA dies in Florida, the agent cannot use the authority granted in the document to control the decedent’s estate and avoid probate. In all US states, the effectiveness of a POA ends when the principal dies – no matter the language used in the document.
As provided by Florida Statutes §709.2109 (1), “a power of attorney terminates when:
- The principal dies
- The principal becomes incapacitated (if the power of attorney is not durable)
- The principal is adjudicated totally or partially incapacitated by a court, unless the court determines that certain authority granted by the power of attorney is to be exercisable by the agent
- The principal revokes the power of attorney
- The purpose of the power of attorney is accomplished, or
- The agent’s authority terminates, and the power of attorney does not provide for another agent to act under the power of attorney”
If the deceased principal’s estate qualifies for probate, the court must appoint a personal representative (also referred to as the “executor”) to conduct the administration and distribution of the estate.
The personal representative is generally appointed in the deceased’s will. If the decedent did not appoint anyone or there is no will, the court must designate an appropriate person based on a statutory order of preference.
Please note that the person selected as the principal’s agent is not necessarily the court’s choice to serve as a personal representative.