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Florida Power of Attorney Laws

A durable POA allows someone to help you with your financial matters if you ever become incapacitated—here's how to make one in Florida.

By , Attorney

If you want someone to be able to deposit your checks at your bank, file your taxes, or even sell or mortgage your home, you can create a handy document called a power of attorney. A POA is a simple document that grants specific powers to someone you trust—called an "agent" or "attorney-in-fact"—to handle certain matters for you.

What Types of Power of Attorneys Are Available in Florida?

You can make several different types of POAs in Florida. In particular, many estate plans include two POAs:

  • a power of attorney for finances, which allows someone to handle your financial or business matters, and
  • a power of attorney for health care, which allows someone to make medical decisions on your behalf (called a "designation of health care surrogate" in Florida).

In most estate plans, these POAs are what are known as "durable" POAs, which means that they retain their effectiveness even after you're incapacitated. It's a good idea for most people to create these two documents, as they help plan for the unexpected.

To learn about other types of POAs, including non-durable (limited) and springing POAs, see What Is a Power of Attorney. Below, learn how to create a durable financial POA that is valid in Florida.

What Are the Legal Requirements of a Financial POA in Florida?

For your POA to be valid in Florida, it must meet certain requirements.

Mental Capacity for Creating a POA

The person making a power of attorney must be of sound mind. The exact contours of this mental capacity requirement are open to interpretation by Florida courts. While there haven't been many cases on the subject, one court has concluded that a POA is valid if it was made on a day that the person was lucid. (Smith v. Lynch, 821 So. 2d 1197 (Fla. Dist. Ct. App. 2001).) If you're helping someone make a POA and you're unsure whether they have the required mental capacity, consult an estate planning attorney.

Witnessing and Notarizing the POA

To finalize a POA in Florida, the document must be:

  • witnessed by two people, and
  • signed before a notary public.

Steps for Making a Financial Power of Attorney in Florida

1. Create the POA Using Software or an Attorney

Some private companies offer forms or templates with blanks that you can fill out to create your POA. For a more user-friendly experience, you can try a software program like WillMaker, which guides you through a series of questions to arrive at a POA that meets your specific aims and is valid in your state. You can also hire a Florida lawyer to create a POA for you. Many lawyers will include durable POAs as part of a more comprehensive estate plan alongside a will or living trust.

Whatever method you choose, the process of making the POA will include either granting your agent comprehensive powers or selecting, from a list, the specific powers you want your agent to have. For example, you might choose to grant your agent the power:

  • to engage in real estate transactions
  • to engage in banking and financial transactions
  • to engage in retirement plan transactions
  • to engage in stock, bond, and other securities transactions
  • to operate a business or entity
  • to receive government benefits
  • to pursue tax matters
  • to provide for personal and family maintenance.

In Florida, unlike many other states, a power of attorney is not durable by default (meaning it won't remain effective after your incapacitation). To be durable, your power of attorney must include words such as, "This durable power of attorney is not terminated by subsequent incapacity of the principal." (Fla. Stat. Ann. § 709.2104.)

2. Sign the POA in the Presence of a Notary Public and Two Witnesses

As mentioned above, you can't simply sign the document and call it a day. In Florida, you must have the POA notarized, and two witnesses much watch you sign and then sign the document as well.

3. Store the Original POA in a Safe Place

Once you have completed the POA, store the original in a safe place that your loved ones can easily access, and let them know where to find it. (It won't do much good locked away in a safe that no one can get into.) If you become incapacitated, your agent might need the original POA to act on your behalf.

4. Give a Copy to Your Agent

You should also give a copy of the power of attorney to your agent so that your agent is familiar with the contents of the document.

5. File a Copy With the Land Records Office

If you selected "real estate transactions" as one of the powers you granted to your agent, you should also file a copy of your POA in the land records office (known as the Clerk of the Circuit Clerk & Comptroller's Office in Florida) in any county where you own real estate. This will allow the land records office to recognize your agent's authority if your agent ever needs to sell, mortgage, or transfer real estate for you.

6. Consider Giving a Copy to Financial Institutions

You can also give copies of your durable financial POA to banks or other institutions that your agent might need to deal with in the future. This step might eliminate some hassles for your agent if your agent ever needs to use the POA. Banks can sometimes be finicky about accepting POAs; see Can Banks Refuse a Power of Attorney? for more details.

Who Can Be Named an Attorney-in-Fact (Agent) in Florida?

Legally speaking, you can name any competent adult to serve as your agent. But you'll want to take into account certain practical considerations, such as the person's trustworthiness and geographical location. For more on choosing agents, see What Is a Power of Attorney.

Florida allows you to appoint co-agents who are authorized to act at the same time, but it's usually advisable to stick to just one agent to minimize potential conflicts. However, naming a "successor" agent—an alternate who will become your agent if your first choice is unavailable for any reason—is always a good idea, as it creates a backup plan.

When Does My Durable Financial POA Take Effect?

In Florida, unless you've explicitly stated otherwise in the document, your durable financial power of attorney takes effect as soon as you've signed it before witnesses and a notary public. For the most part, Florida no longer allows "springing" powers of attorney, which are POAs that become effective only after some condition is met. (But if the springing POA was made prior to October 1, 2011, it will still be valid.)

When Does My Financial Power of Attorney End?

Any power of attorney automatically ends at your death. It also ends if:

  • You revoke it. As long as you are mentally competent, you can revoke your document at any time.
  • No agent is available. To reduce the likelihood of this happening, you can name a successor (alternate) agent in your document.
  • A court invalidates your document. It's rare, but a court may declare your document invalid if it concludes that you were not mentally competent when you signed it, or that you were the victim of fraud or undue influence.

Additionally, in Florida, if you named your ex-spouse as your agent in your POA, your ex-spouse's authority to act under the POA is suspended if you or your spouse files for divorce.

For more on Florida estate planning issues, see our section on Florida Estate Planning.

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