A power of attorney (POA) is a valuable document in estate planning. In many cases, a deceased’s beneficiaries may be confused with multiple documents and ask themselves whether a POA is effective upon death.
Does next of kin override power of attorney in Florida? Read on to find out.
Florida Power of Attorney (POA) – The Basic Elements
A power of attorney (POA) is a legal document used to grant another person the authority to act on one’s behalf or handle one’s private affairs. The person who executes the POA is referred to as the “principal” of the document.
The person who receives authority through the legal instrument is called an “agent” or “attorney-in-fact.” The scope of power granted with a POA varies according to the language used in the document.
The agent’s authority can be limited or broad, depending on the principal’s decision. A durable power of attorney is a type of POA that remains effective in the event of incapacitation or severe illness.
In such cases, the agent can handle the decedent’s affairs within the boundaries defined in the POA. Elderly individuals often use POAs to designate an agent to administer their financial matters when they no longer have the sound mind or physical ability to act for themselves.
Non-durable POAs only serve to fulfill a specific purpose. This type of POA is no longer effective if the principal becomes incapacitated. For example, a real estate broker can use a POA to name an agent on his behalf in another state.
Does Next of Kin Override Power of Attorney in Florida? – The Verdict
Florida Statutes §709.2109 (1) specifies that “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 power of attorney provides that it terminates
- 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”
When the principal of a POA dies, the document is no longer effective. All assets titled in the principal’s name must go through court administration before distribution to their rightful heirs and beneficiaries.
If one of the decedent’s next of kin was named as an agent to a POA, he or she is no longer responsible for handling the assets titled in the principal’s name. Property inherited through a will must go through probate.
Dying without a will results in intestacy. The division and distribution of intestate estates follow a default order of preference outlined in Florida intestacy law. In either case, the next of kin named in the decedent’s will or entitled to inherit through intestacy receive the decedent’s assets.