Orlando Law Firm Drafting Florida Powers of Attorney
Entrusting others with the authority to act on your behalf
A Florida power of attorney is a legal document used in both simple and complex estate planning where one person (the principal) gives another (the agent) the authority to act on his or behalf. The degree of authority and scope of the power granted by the principal depends on the type of power of attorney executed. The attorneys at Gierach and Gierach, P.A. can walk you through the process of creating an appropriate power of attorney in Florida.
Types of powers of attorney
There are four types of powers of attorney recognized in Florida:
- Durable power of attorney — A durable power of attorney is created when power given to the agent survives beyond the incapacity (caused by disability or death) of the principal. To be valid, a durable power of attorney must satisfy the following requirements:
- The declaration must be in writing.
- The document must be executed with the same formalities as a conveyance of real property.
- A Florida durable power of attorney must contain the words: “This durable power of attorney is not affected by subsequent incapacity of the principal except as provided in s. 709.08, Florida Statutes” or similar words.
- General power of attorney — A general power of attorney is an authorization for the agent to act on behalf of the principal to accomplish a list of activities. Absent restriction, the agent may act at his or her discretion to perform any legal act on behalf of the principal that pertains to this designated list of activities.
- Limited power of attorney — A limited power of attorney grants the agent power to do everything necessary to accomplish a specific task on behalf of the principal. An example of a limited power of attorney is the principal giving the authority to an agent to sell his automobile.
- Medical power of attorney — A medical power of attorney, another estate planning tool that is similar to a guardianship, designates another person to make decisions about your health care if you become incapacitated. The medical power of attorney must be durable, which means that it is effective whether the principal is incapacitated or not.
A declaration of healthcare surrogate is similar to a medical power of attorney, except for the following significant differences:
- A healthcare surrogate is strictly limited to medical decisions whereas a medical power of attorney may grant an agent authority over financial matters as well.
- A healthcare surrogate takes effect only when the principal becomes incapacitated.
Except for durable powers of attorney, the other powers of attorney in Florida cease to be valid once the principal has died.
Changes to the Florida power of attorney laws
The Florida legislature recently adopted significant changes to the state laws governing powers of attorney, affecting Florida estate planning measures such as creating a trust or making a will. The new laws, which took effect on October 1, 2011, dictate the following:
- An agent may only exercise authority specifically granted in the power of attorney, as well as any authority reasonably necessary to give effect to express grants of authority.
- Springing powers of attorney may not be created in Florida, except for a declaration of healthcare surrogate.
- The principal must sign the Florida power of attorney when giving the agent the power to:
- Create an inter vivos trust
- Amend, modify, revoke or terminate an existing trust (additionally, the trust instrument must explicitly authorize the settlor’s agent to exercise such authority)
- Make a gift, subject to statutory limits
- Create or change rights of survivorship
- Create or change a beneficiary designation in a life insurance policy, annuity or retirement plan
- Waive the principal’s right to be a beneficiary of a joint and survivor annuity, including a survivor benefit under a retirement plan
- Disclaim property and powers of appointment granted under a will
- Executing another document that clearly expresses the principal’s intent to revoke the power of attorney can revoke a power of attorney
Schedule a free consultation about powers of attorney with experienced Florida lawyers
Our lawyers at Gierach and Gierach, P.A. handle all types of powers of attorney on behalf of our clients. Call our Orlando law firm at 407-545-5744 or (844) 431-0813, or contact us online today to schedule your free initial consultation. We also assist people from other states needing legal assistance in Florida.