Law Firm Guide On Understanding Power Of Attorney & Its Importance

When Do You Need A Power Of Attorney?

A POA or power of attorney in Florida is a useful legal document that grants another person the authority to act on your behalf in specific situations. These acts can include things such as making bank deposits, filing tax returns, or selling or mortgaging your home. 

A power of attorney (POA) is an essential aspect of any estate plan. Any legally competent adult can execute a POA, and many do so as their first step in formalizing their estate plan.

But who needs a power of attorney? Anyone who is legally competent and  wants to authorize another person to act on their behalf in legal or financial matters should consider creating a power of attorney. There are certain situations where having a power of attorney is particularly important:

1. Aging or Illness: If you are getting older or facing a serious illness, you may want to appoint someone to handle your financial or legal affairs if you become unable to do so.

1. Business Owners: Business owners may need to appoint someone to handle their affairs if they become incapacitated or are unavailable for an extended period.

1. Military Personnel: Service members may need to appoint someone to handle their affairs while they are deployed overseas.

1. Travelers: If you are planning to travel abroad for an extended period, you may want to appoint someone to handle your affairs while you are away.

1. Parents of Minor Children: Parents may want to appoint someone to handle their affairs if they become incapacitated or are unavailable to care for their children.

1. Real Estate Owners: Real estate owners may want to appoint someone to handle their affairs if they become incapacitated or are unable to manage their properties.

In Florida, a power of attorney can be used for a variety of legal and financial matters, including signing legal documents, managing finances, and making medical decisions. It’s important to work with an experienced attorney to ensure that your power of attorney document is legally valid and tailored to your specific needs. 

There are different types of powers of attorney that are dependent on the principal’s needs. These are: 

General Power Of Attorney

A general power of attorney in Florida is a legal document that grants an individual, known as the agent or attorney-in-fact, broad authority to act on behalf of another person, known as the principal, in various legal and financial matters. The agent can manage the principal’s financial affairs, make legal decisions, and sign legal documents.

With a general power of attorney, the agent can perform any legal act that the principal could do for themselves, except for acts that require a specific type of power of attorney, such as a healthcare power of attorney. Examples of tasks that the agent may perform include signing contracts, buying and selling property, managing bank accounts, and handling tax matters.

A general power of attorney can be useful in situations where the principal is temporarily unable to handle their own affairs, such as during a period of travel, or for business owners who need someone to manage their affairs while they are unavailable.

It’s important to note that a general power of attorney ends automatically when the principal becomes incapacitated or dies, and therefore cannot be used for long-term planning purposes. If the principal becomes incapacitated, the agent’s authority will be terminated, and a durable power of attorney or guardianship may be needed to continue managing the principal’s affairs.

Creating a general power of attorney requires careful consideration and should be done with the guidance of an experienced attorney to ensure that the document is legally valid and tailored to the principal’s specific needs.

Durable Power Of Attorney

A durable power of attorney serves the same purpose as a general one, except, in contrast to a general power of attorney, which terminates upon the principal’s incapacity, a durable power of attorney continues to be valid and effective even if the principal becomes incapacitated. This means that the agent can continue to manage the principal’s affairs, such as paying bills, managing investments, and making healthcare decisions, even if the principal is unable to do so themselves.

A durable power of attorney in Florida can be used to plan for the possibility of future incapacity, and is often included as part of an estate plan. The document can be structured to provide specific instructions for the agent, such as limiting their authority to certain types of decisions, or specifying when the power of attorney becomes effective.

It’s important to note that a durable power of attorney in Florida must be executed while the principal is still mentally competent. If the principal becomes incapacitated and has not executed a durable power of attorney, a guardianship may be necessary to manage their affairs.

The principal can also specify the responsibilities and powers granted in any power of attorney. For example, they can only grant powers over financial matters or only over medical issues. 

• Financial Durable Power Of Attorney

With a financial POA, an agent could handle things like collecting and depositing benefits, filing taxes, and managing retirement funds on your behalf. 

It’s beneficial to create a power of attorney for finance not only for yourself but also for your loved ones. A court case will likely be necessary if you lose the ability to make decisions for yourself and haven’t already established a power of attorney. To gain control of your finances, your partner or closest living relatives will have to petition the court.

You can delegate your legal authority to another person by drafting and signing a durable POA. This individual acts as your representative. Y  you can decide how much authority to give your agent. There are a few things you might want to authorize your agent to do on your behalf.

• Spend your money on food, shelter, and transportation.
• Acquire, dispose of and maintain tax for real estate and other properties.
• Receive government assistance.
• Interact with financial institutions like banks.
• Help you get set up with insurance and annuities, as well as with tax filing and payment.
• Manage your retirement accounts, run your business, handle any legal matters that may arise, and any property that you may inherit or to which you may be entitled.

The agent must look out for your interests, keep detailed records, keep your belongings detached from their own, and avoid any potential conflicts of interest.

• Medical Durable Power Of Attorney

With a medical or health care power of attorney, you can designate someone else to make decisions about your treatment. There are a few different names for this text. Healthcare proxies, healthcare directives, advance directives, or similar terms may be used in your state. 

You can appoint someone as your healthcare agent to oversee your care and make decisions on your behalf by drafting a durable POA for health care. You can give the authority as you feel comfortable. The majority of patients grant their chosen healthcare agents full legal authority over their medical treatment.

In light of this reality, most states’ power of attorney forms allow your agent to make any medical decisions on your behalf unless you specify otherwise. This means that in most cases, your agent will have the freedom to

• Consent to or refuse consent to any medical treatment affecting your physical or mental health.
• The ability to appoint and dismiss medical staff for your welfare.
• Choose the appropriate medical facilities for you.
• Gain access to your medical records and other personal information, and Obtain court authorization, if necessary, to obtain or withhold medical treatment.

It’s important to remember that your agent has no say over your decisions as long as you’re capable of knowing and expressing what you want. When you’ve exhausted all other options and need help, then your agent will become involved.

Springing Power Of Attorney

A springing power of attorney (POA) is a type of POA that does not take effect until a certain condition is met. Some people, especially those who are not comfortable with the concept of handing over control, prefer to use a durable power of attorney for finances (POA). 

This type of POA “springs” into effect only if a third party determines that the person has become incapacitated. Despite its apparent usefulness, springing POAs can come with some practical drawbacks.

Florida, unlike many states,  does not recognize a springing power of attorney. The state also does not provide a common format for a POA. Florida is one of many states where getting a POA is more difficult because there is no official form. 

One strategy is to create a durable power of attorney for finances, identify an agent you completely trust, and instruct that agent to only use the document in the event of your incapacity. A power of attorney lawyer can help you draft a POA that is specifically tailored to your needs and concerns.

Florida Laws Governing POA

Florida has rules for executing a power of attorney. Your power of attorney must adhere to the following specific guidelines to be recognized. 

• A springing power of attorney in Florida is not recognized. The state does not provide a standard form for a power of attorney document. 
• Florida laws specify that a durable power of attorney must include the following clause: “This durable power of attorney is not terminated by subsequent incapacity of the principal except as provided in Chapter 709, Florida Statutes.”
• A power of attorney in Florida must also be signed in the presence of two witnesses and notarized.
• If the principal is unable to sign for any reason, the notary public can do so in the principal’s place. 
• In Florida, your healthcare surrogate may not be a witness to the document naming your healthcare representative.
• The individual making the POA must have full mental capacity. The Florida courts have discretion over how strictly to apply this mental capacity requirement. A power of attorney is legally binding if it was signed while the grantor was of sound mind. 

You should consult a power of attorney lawyer if you are mulling over executing a power of attorney for whatever reason.

Things To Consider When Making POAs

Any responsible adult can be legally appointed as your agent. However, there are some logistical details to think about, like the person’s reliability and proximity to you. Even though you can name two agents in Florida who are both empowered to act simultaneously, it is best to name only one so that any potential disagreements can be avoided. 

However, it is always prudent to name a “successor” agent, someone who will take over for your primary agent if your primary agent is unable to serve for any reason.

Hire An Experienced Power Of Attorney Lawyer In Coral Gables, FL

It is advisable to work with an experienced lawyer who can draft the power of attorney for you and answer any questions you may have. 

You can create a power of attorney yourself . However, to ensure it’s done in a way that will hold up in court, it’s highly recommended to get it done by an experienced lawyer.

You can go online and type in “best power of attorney lawyer near me” to pull up a list of qualified POA lawyers in your area. You can look into the firms and pick the one that has a proven track record of excellent service.

It’s important to pick a lawyer who is trustworthy, responsible, and has experience in creating power of attorney documents. Consult with an experienced power of attorney lawyer from The Estate Plan in Coral Gables. You can visit their offices at 135 San Lorenzo Ave #750 Coral Gables, FL 33146 or call them at (305) 677-8489 to get started.