Power of Attorney
What is a power of attorney?
A power of attorney is a document that appoints a person, (i.e. “attorney in fact”) to handle certain transactions on behalf of the person executing the power of attorney, (i.e. “principal”).
Are there different types of powers of attorney?
There are three basic types of powers of attorney: 1) durable, 2) non- durable, and 3) springing.
A non-durable power of attorney allows the attorney in fact to handle transactions on the principal’s behalf only while the principal is competent. In contrast, a durable power of attorney allows the attorney in fact to act even after the principal is no longer competent.
A springing power of attorney gives an attorney in fact power to handle certain transactions only after a third party, (usually a physician) has provided written confirmation that the Principal is incompetent to handle his/her financial affairs. Springing powers of attorney are no longer allowed in the State of Florida.
What transactions does a power of attorney authorize an attorney in fact to perform?
The provisions of the power of attorney determine how broad or narrow the powers are which have been granted to the attorney in fact. The scope of the power of attorney can be very limited, i.e. power to handle a single real estate transaction; or alternatively, the powers can be extremely broad in scope, i.e. all financial and tax transactions. There are certain extraordinary powers which must be specifically initialed by the Principal within the Power of Attorney itself to effectuate.
Who is eligible to act as my attorney in fact?
Any individual who is 18 years of age or older, of sound mind, or a financial institution with Trust powers that is located in the State of Florida may act as an attorney in fact.
How long is a power of attorney effective?
All powers of attorney terminate upon the death of the Principal. The attorney in fact may no longer act pursuant to the power of attorney upon knowledge of the Principal’s death. Some may terminate in a number of days however, if they are only limited to a period of time or for a specific transaction.
All powers of attorney are revocable, meaning if the Principal changes his/her mind and is still competent the power of attorney may be revoked.
In Florida, unless the power of attorney provides otherwise, the law provides that each attorney in fact may act independently.Can I do whatever I wish as attorney in fact?
An attorney in fact is a fiduciary, meaning that he/she must act in the best interests of the Principal and must observe standards for fiduciaries as set out in the Florida statutes.
Specifically, the attorney in fact must:
- Preserve the principals estate plan to the extent actually known to the attorney in fact
- May not act contrary to the principals reasonable expectations as known by the attorney in fact
- May not delegate his/her authority as attorney in fact
- Must keep a record of all receipts, transactions and disbursements
- May not perform duties that were contractually required of the Principal
- May not make an affidavit as to the Principal’s personal knowledge
- May not vote on behalf of the Principal in a public election and
- May not execute or revoke the principals will or codicil
Can I add my daughters or sons name to my bank account instead of having a power of attorney?
Can I have a durable power of attorney that becomes effective only in the future?
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