Under Florida Law, a power of attorney (POA) is a legal “writing that grants authority to an agent to act in the place of the principal, whether or not the term is used in that writing.”
The person creating the document (the principal) gives another person (the agent) the power to act on his or her behalf in specified circumstances. Keep reading for an in-depth Florida Power of Attorney FAQ.
What is the Level of Power Granted to an Agent Under a POA?
The language used by the principal when drafting the document determines the extent of power the agent has. A POA may be very broad or limited, depending on the terms expressed within the document.
As provided by Florida Statutes §709.2114 (1), “an agent is a fiduciary. Notwithstanding the provisions in the power of attorney, an agent who has accepted appointment:
- Must act only within the scope of authority granted in the power of attorney. In exercising that authority, the agent:
- May not act contrary to the principal’s reasonable expectations actually known by the agent
- Must act in good faith
- May not act in a manner that is contrary to the principal’s best interest” (except as provided by Fla. Stat. §709.2114(2)(d) and § 709.2202)
Who May Serve as an Agent Under a Florida POA?
Florida Statutes §709.2105(1) defines that “the agent must be a natural person who is 18 years of age or older or a financial institution that has trust powers, has a place of business in this state, and is authorized to conduct trust business in this state.”
Hence, any eligible person over 18 years of age can serve as an agent of a Florida power of attorney.
Are There Specific Execution Requirements for Florida POAs?
The validity of a POA depends on whether specific requirements established by state law were fulfilled.
According to Florida Statutes §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 (…).”
Florida Statutes §709.2105 (3) adds that “if the principal is physically unable to sign the power of attorney, the notary public before whom the principal’s oath or acknowledgment is made may sign the principal’s name on the power of attorney (…).”
What is a Durable Power of Attorney in Florida?
The essence of a durable POA is that this type of legal designation will not terminate upon the principal’s incapacitation. Hence, under a durable POA, the agent is still authorized to act on the principal’s behalf in the event of temporary or permanent incapacitation.
Florida Statutes §709.2104 provide that “except as otherwise provided under this part, a power of attorney is durable if it contains the (…) words that show the principal’s intent that the authority conferred is exercisable notwithstanding the principal’s subsequent incapacity.”
When is a Florida POA Terminated?
As described 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 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”