A power of attorney (POA) is a legal instrument that allows one person, known as the principal, to authorize another person, known as the agent, to perform legal acts on his behalf. Examples might include selling the principal’s home or consenting to a particular medical treatment. A POA is “durable” if it is structured to remain valid even after the principale becomes incapacitated (mentally incompetent or unable to communicate).
The POA is often used as a less restrictive alternative to adult guardianship, because it allows an agent to manage the affairs of a principal who, due to illness, infirmity or incapacity, is unable to manage his own affairs. In 2011 Florida completely revamped its POA law, and as a consequence, Florida POA law is different from the law of many other jurisdictions. Following are some of its primary distinguishing features.
No “Springing POA” in Florida
A “springing” POA is a special type of durable POA that is legal in most states. A springing POA contains terms that direct that it does not take effect when it is signed — instead, it only takes effect, if at all, when the principal becomes incapacitated. This allows someone who anticipates future incapacity (someone with early stage Alzheimer’s, for example) to maintain authority over his own affairs until it becomes impossible to do so.
Florida, however, does not allow springing POAs, at least if they were signed after October 1, 2011. Instead, a POA that purports to be a springing POA becomes effective the moment it is signed, and it remains effective after the principal becomes incapacitated.
Civil Liability for Third Parties Who Refuse to Honor a Valid POA
A common problem with POAs is that performing the legal acts contemplated therein, such as selling a home, often require the cooperation of a third party such as a bank. All over the country, such third parties often refuse to honor valid POAs, because they fear that the POA contains some latent legal defect that could subject the third party to liability for cooperating with the agent. Imagine a bogus POA used to sell someone’s home without authorization, for example.
Under Florida POA law, however, a third party who refuses to honor a valid POA can be held civilly liable for refusing to honor it (by refusing to do business with the agent on behalf of the principal), to the extent that this refusal caused losses to the principal.
Strengthened Formal Requirements
The formal requirements for a Florida POA are among the most stringent in the nation. To be legally valid, the principal must sign the must the POA in front of at least two witnesses and one notary public. The notary public, however, is entitled to serve as one of the two witnesses.
Contact Lorenzo Law Immediately
Florida’s POA law includes many more restrictions not listed above. If you anticipate needing a durable POA, don’t download a form from the Internet. Instead, contact estate planning attorney Jose Lorenzo by calling (305) 999-5411, completing our online intake form, emailing us at [email protected] or visiting one of our offices in Coral Gables and Ft. Lauderdale. We accept clients throughout the state of Florida.