Estate Planning Attorneys | Florida Law and Powers of Attorney
Estate Planning Attorneys | A power of attorney is one of the most sought-after legal documents at an elder law attorney’s office. Simply put, a power of attorney authorizes one person (the agent) to conduct personal business for another person (the principal). The powers that the principal grants could be broad, such as handling all of someone’s financial affairs in the event the principal is unable to do so. Or those powers could be narrow, such as simply signing documents at the closing of a real estate transaction on the principal’s behalf.
It’s important to know that each state has different laws regarding these legal documents. In October 2011, Florida made rules changes regarding the giving and receiving of power of attorney authority. The changes apply to all POAs created on or after Oct. 1, 2011. POAs signed before that date are still valid. Here are a few of the changes:
Sign it Correctly
For a POA to be binding, two witnesses and a notary public must see and attest that the principal signed the document. The notary can double as one of the two witnesses.
Florida law states that POAs created properly under the laws of another state are recognized in Florida. However, a third party (any person or institution asked to act by the agent) located in Florida who is asked to accept an out-of-state POA can request a legal opinion on the document’s validity under the other state’s laws.
Copy or Original?
If an agent is buying or selling real estate, an original POA must be filed in the county records. However, in most other uses, Florida law now recognizes that photocopies and electronic images are valid.
No More Authority During Divorce
If a husband and wife are splitting up, once the petition for divorce is filed, a soon-to-be ex-spouse’s authority to act as an agent in a POA is terminated. The divorce doesn’t have to be finalized.
No More Springing POAs
In the past, there was a type of POA that goes into effect based on some stipulation, such as the principal becoming incapacitated. These so-called “springing” POAs are not recognized under Florida law now. All powers of attorney documents are enforceable as soon as they are signed. However if a springing POA was signed before Oct. 1, 2011, it is grandfathered into law.
Powers Are Specific
Older versions of POAs usually included a long-winded catch-all phrase to lump in anything the other wording left out. POAs written in Florida must be specific in listing the powers being granted. If a specific action is not granted in the POA, the agent cannot perform it.
Agent Duties, Compensation
Today, the agent named in a POA is required by Florida law to preserve the estate plan goals of the principal. In other words, the agent cannot be reckless with the principal’s money. Also, because the work of the agent eats up time, the agent is entitled to compensation, depending circumstances spelled out by the court. So payment could be made to CPAs, financial institutions, or even spouses for the work they do.
Consult with an Attorney
Laws change from time to time. It’s difficult for most people to stay on top of these changes. Estate planning attorneys can look at your current documents and assist with changes if necessary.