What to Know About Florida's Power of Attorney Law
The rules for Florida POAs changed in 2011
A power of attorney (POA) is a legal document that authorizes one person, called the agent or the attorney-in-fact, to take care of personal business for another individual who's referred to as the principal. The powers granted to the agent might be broad, such as dealing with all the principal's investments if she's unable to do so herself, or narrow, like simply paying monthly bills on the principal's behalf.
Florida's POA Laws Have Changed
The rules for giving and getting a power of attorney (POA) in Florida changed in October 2011 when the state's Power of Attorney Act went into effect. This law completely replaced and superseded Florida's previous law governing powers of attorney. It applies to all POAs created on or after October 1, 2011.
POAs entered into prior to Oct. 1, 2011, are still valid. The law doesn't affect them, but newer POAs must comply with the 2011 legislation.
Signing Formalities Are Still Important
The law requires that the principal must sign the document in front of two witnesses and a notary public. The notary can be one of the two witnesses, however.
The law also provides that powers of attorney properly executed under the laws of another state are recognized in Florida, but a third party located in Florida who is asked to accept an out-of-state POA can ask for a legal opinion as to the document's validity under the other state's laws.
A "third party" is defined as any individual or institution who is asked to do business with the agent on behalf of the principal.
Reluctant Third Parties
It sometimes happens that third parties are hesitant or might even refuse to take actions directed by the agent. This typically stems from uncertainty as to the POA's validity.
The new law provides that third parties can be forced to act, assuming the POA is indeed valid and it has not been revoked. A reluctant third party must state in writing why he is unwilling to do whatever is being asked of him. He must do so within a "reasonable" amount of time, allowing him to consult with an attorney or another advisor. Third party financial institutions have four days.
If undue or unreasonable delay results in financial losses or damages to the principal, the third party can be held legally liable for those damages.
Copies Are OK
The new Florida law rules that photocopies and electronic images of POAs are perfectly valid. But original POAs must still be filed in the county's records if they provide that the agent can buy or sell real estate on behalf of the principal.
Rules Governing Multiple Agents
Under the old law, if two agents were named in a power of attorney to act on behalf of the principal at the same time, they had to act unanimously. If three or more agents were named, a majority vote was required. This changed with the 2011 legislation.
The current law provides that multiple agents who are named to act at the same time can act independently of each other unless the power of attorney specifically states otherwise.
Divorce Triggers Revocation of a Spouse's Authority
The mere filing of a petition for divorce terminates the authority of the principal's spouse to act as an agent under the principal's POA. The divorce does not have to be final yet.
POAs Are No Longer Springing
"Springing" POAs don't go into effect unless and until the principal becomes incapacitated. They are no longer recognized under Florida law with this new legislation. Currently, all powers of attorney are effective immediately upon signing.
Springing powers of attorney signed before October 1, 2011, are grandfathered into the new law, however. They remain valid, regardless of whether the principal has yet become incapacitated.
Specific Authorities Must Be Granted
This catch-all phrase commonly appeared in old powers of attorney:
"...in general, to do all other acts, deeds, matters and things whatsoever in or about my estate, property and affairs, whether or not particularly or generally described and any and all other acts, deeds, matters, and things not particularly or generally set forth herein, as fully and effectively to all intents and purposes as the undersigned could do if personally present; and to employ, retain in employment and discharge such persons (both professional and otherwise) as my agent may deem necessary to assist in the performance of any of the foregoing."
This provision can no longer be relied upon. A power of attorney must specifically list the authority or authorities being granted, and the agent cannot take any actions that aren't specified in the POA.
An Agent Has a Duty to Preserve the Principal's Estate Plan
Under the current law, an agent acting under a power of attorney has a mandatory duty to try to preserve the principal's estate planning goals to the extent that they're known to the agent.
The Agent Is Entitled to Compensation
Depending on the scope of powers given to the agent, the obligation to act on someone else's behalf can be quite time-consuming. The new Florida law provides that an agent is entitled to compensation for her time and work, but with some limitations.
Spouses and heirs named as agents can be paid, as can financial institutions, attorneys, and CPAs that are licensed or registered with the state of Florida. Any other Florida resident is entitled to payment as well as long as she's never acted as agent for more than three principals at the same time.
Anyone age 18 or older is legally permitted to act as an agent with or without compensation according to these rules, provided she's mentally competent.
Consider Consulting With an Attorney
These are some significant changes with far-reaching implications. If you've granted someone power of attorney or you're considering doing so, you might want to consult with a Florida estate planning attorney to ensure that you get it all right under the new law.
State laws can change frequently and this information may not reflect the most recent changes. Please consult with an attorney for current legal advice. The information contained in this article is not legal advice and is not a substitute for legal advice.