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.
You can make several different types of POAs in Florida. In particular, many estate plans include two POAs:
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.
For your POA to be valid in Florida, it must meet certain requirements.
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.
To finalize a POA in Florida, the document must be:
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:
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.)
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.
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.
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.
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.
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.
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.
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.)
Any power of attorney automatically ends at your death. It also ends if:
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.