A Florida POA (POA) is a legal document that allows you, as the principal, to empower someone else, known as the agent, to perform legal acts on your behalf, such as signing a contract or consenting to medical treatment. A durable POA is a special type of POA that remains valid even after you lose mental capacity.
You might consider using a durable POA to allow someone to manage your finances or make medical decisions for you in case you develop a terminal illness, for example. Your agent will only be empowered to perform those acts that you specifically list in the POA form — you might allow your agent to make medical decisions for you, for example, but not to make financial decisions such as managing your bank account.
Power of Attorney vs. Legal Guardianship
A legal guardianship can accomplish many of the same purposes as a durable POA. Its main advantage is that a guardian can be appointed for you by court order even after you lose mental capacity, while a durable POA relationship must be created before you lose mental capacity.
The disadvantages of creating a guardianship rather than simply executing a POA are significant. Guardianship proceedings can cost thousands of dollars, and they can be emotionally draining on all parties concerned. Furthermore, once you are mentally incapacitated you will not be able to select your own guardian, even though the court must take your preference into account. Durable powers of attorney are used as an alternative to guardianship.
The Peculiarities of Florida Power of Attorney Law
In 2011 Florida enacted a major revision of its POA law. Some of its distinctive features, compared to the law of other states, include:
- You must sign your POA in front of two witnesses and a notary public. The notary public must acknowledge your signature, and he can also serve as one of your two witnesses.
- You can sue a third party, such as a hospital, that refuses to honor your valid POA, if their refusal caused you damages.
- “Springing” powers of attorney, that can be signed now but do not go into effect until you become incapacitated, are prohibited. You can probably get around this restriction when it comes to medical decisions, by appointing a health care surrogate.
- Powers of attorney that do not comply with current Florida POA law, but that were signed before October 1, 2011, remain valid until their natural expiration, as long as they comply with Florida law as it existed before October 1, 2011.
- An out of state POA is accepted is valid in Florida as long as it complies with the law of the state in which it was executed.
We’ve Got Your Back
If you are considering creating a power of attorney relationship, or if you are thinking more generally about end of life or incapacity planning, contact estate planning attorney Jose Lorenzo by calling (305) 999-5411, completing our online form or visiting one of our offices in Coral Gables and Ft. Lauderdale. We accept clients throughout the state of Florida.