Understanding Power of Attorney in Florida: Financial and Healthcare Considerations
A Power of Attorney (POA) is a critical legal tool that grants another person the authority to manage your affairs if you’re unavailable or unable to handle them yourself. In Florida, POAs come in several forms—some focus on financial matters, others on healthcare decisions. At Smith Cors Law, we help individuals and families craft powers of attorney that reflect their unique needs, providing reassurance that trusted agents can step in if the unexpected occurs. Below, we break down the types, requirements, and benefits of POAs under Florida law.
1. What Is a Power of Attorney?
A Power of Attorney is a written document where you (the “principal”) designate someone (the “agent” or “attorney-in-fact”) to act on your behalf. Depending on how it’s drafted, a POA can cover tasks like paying bills, buying or selling property, managing investments, or making healthcare decisions.
- Durable POA: Remains effective if the principal becomes mentally or physically incapacitated.
- Non-Durable POA: Terminates upon incapacity. Often used for temporary or specific transactions (like closing a real estate deal if you’re overseas).
- Healthcare POA (often called a Healthcare Surrogate Designation): Focuses on medical decisions.
2. Florida-Specific Requirements for Powers of Attorney
Under Florida law (Chapter 709, Florida Statutes):
- Written and Signed
- The principal must sign the POA in front of two witnesses and a notary.
- Capacity
- The principal must be of sound mind at the time of execution.
- Durability Language
- For it to remain valid through incapacity, it must explicitly state it’s “durable.”
An improperly executed POA can lead to disputes or rejection by financial institutions. Always ensure the document meets these formalities.
3. Financial Power of Attorney in Florida
Scope of Authority
A financial POA can be broad or limited. Common powers include:
- Managing bank accounts
- Paying bills
- Filing taxes
- Entering contracts
- Buying or selling real estate
- Overseeing investments
The principal can restrict certain powers (e.g., disallow gifting above a certain amount) or grant sweeping authority, depending on comfort and trust in the agent.
Selecting the Right Agent
Your agent should be someone you trust implicitly—like a spouse, adult child, or longtime friend. They must be:
- Reliable and Organized: They’ll handle your finances and must track transactions carefully.
- Ethical and Trustworthy: A POA agent often has access to sensitive information and funds.
Potential Pitfalls
- Abuse of Power: Dishonest agents might mismanage or embezzle funds.
- Acceptance Issues: Some banks or brokerage firms have specific requirements or prefer internal POA forms.
By working with an attorney and communicating upfront with financial institutions, you can reduce these risks.
4. Healthcare Power of Attorney (Healthcare Surrogate Designation)
Florida recognizes a Designation of Healthcare Surrogate for medical matters, often referred to as a Healthcare Power of Attorney. This document names someone to make healthcare decisions on your behalf if you can’t communicate.
- Authority
- Deciding on treatments, selecting medical facilities, consulting with doctors, and consenting to or refusing procedures.
- HIPAA Compliance
- Without a HIPAA Release, your surrogate may face challenges accessing your medical records.
- Living Will vs. Healthcare Surrogate
- A Living Will states your preferences regarding end-of-life care. A Healthcare Surrogate carries out these wishes and handles decisions beyond end-of-life scenarios, if needed.
5. Differences Between Guardianship and Power of Attorney
If someone becomes incapacitated without a valid POA, family members might seek a court-ordered guardianship. This process can be lengthy and expensive and requires ongoing court supervision. A properly executed POA can avoid the need for guardianship, letting you retain control over who manages your affairs instead of letting the court decide.
6. Revoking a Power of Attorney
You can revoke a POA at any time while you still have mental capacity. Common reasons for revocation include:
- Change in Relationship: A divorce might prompt revoking a POA naming your former spouse as the agent.
- Agent’s Incapacity or Death: If your agent can no longer serve, you may appoint a new one.
- Updated Estate Plan: Periodic reviews may indicate the need to modify or restate your POA.
To revoke, sign a written revocation, notify the agent, and provide a copy to relevant financial institutions. Consider drafting a new POA immediately if you still need someone to manage your affairs.
7. Durable Power of Attorney vs. Springing Power of Attorney
Historically, Florida recognized springing POAs, which become effective only upon the principal’s incapacity. However, laws changed in 2011 to largely eliminate new springing POAs. Today’s standard durable POA typically becomes effective upon signing, although your agent should only act if needed or if you specifically request assistance.
8. Choosing the Right Powers for Your Situation
- Limited (Special) POA
- Ideal for single transactions, such as selling a car or refinancing a mortgage when you’re out of town.
- General (Broad) POA
- Covers a wide range of actions. This can be convenient but requires a high level of trust in your agent.
- Durable (General) POA
- Often included in estate plans, it continues through incapacity. You retain control as long as you’re capable, but your agent can step in if you’re incapacitated.
9. Common Misconceptions
- “My Spouse Automatically Has POA.”
Not always. Marriage does not grant the right to manage all accounts or property titled in one spouse’s name. A formal POA ensures financial institutions recognize authority. - “POA Grants Unlimited Power.”
Your agent is legally obligated to act in your best interests. Misuse of a POA can lead to civil or criminal liability. - “I Only Need a POA if I’m Older or Have Serious Health Issues.”
Accidents or sudden illnesses can happen at any age. Having a POA in place ensures your affairs are managed seamlessly if something unexpected occurs.
10. Integrating POAs into an Estate Plan
A comprehensive Florida estate plan often includes:
- Durable Financial POA
- Healthcare Surrogate Designation (Healthcare POA)
- HIPAA Release
- Living Will
- Revocable Living Trust (if avoiding probate or planning for incapacity of large estates)
Each document serves a different function. For instance, a trust handles asset distribution and management, while the POA covers day-to-day financial decisions.
11. Working with Smith Cors Law
At Smith Cors Law, we take time to understand your priorities and family dynamics before drafting a POA. Our services include:
- Customized Drafting: We specify the powers you want to grant, ensuring the document meets Florida’s statutory requirements.
- Agent Guidance: We can help your chosen agent understand their responsibilities and legal boundaries.
- Updates and Revisions: Estate plans should be revisited periodically to align with life changes—marriage, divorce, births, or relocations.
We believe in proactive planning. A well-prepared POA gives peace of mind, knowing the right person can manage your affairs if you can’t.
Conclusion
A Florida Power of Attorney—whether for financial or healthcare matters—plays a pivotal role in maintaining control over your life’s decisions, even if illness or injury leaves you unable to speak for yourself. By carefully selecting an agent you trust and tailoring the scope of authority, you ensure that your preferences are respected and your loved ones are spared the burdensome process of seeking guardianship. Coupled with other estate planning tools like wills and trusts, a properly executed POA fosters a comprehensive plan for your future well-being.
If you’re ready to set up or update your POA, contact Smith Cors Law. We provide personalized guidance on creating documents that reflect your individual needs, all while staying compliant with Florida laws.
Disclaimer: This blog post is for general informational purposes and does not create an attorney-client relationship. For legal advice tailored to your particular circumstances, please consult a licensed Florida attorney. No aspect of this content has been approved by the Supreme Court of Florida.
Jason Smith, a Marion County native and former state prosecutor, has built a distinguished trial practice while also teaching criminal justice at Pasco-Hernando State College and Saint Leo University, and leading Jericho Road Ministries as Board President.
