Power of Attorney - PTM

PTM Drafts Power of Attorney Instruments

A power of attorney authorizes one person to act on another person’s behalf in legal or business matters. The person who authorizes the power of attorney is called a “principal” and the person who has the power to act on behalf of the principal is called an “agent”.

We draft power of attorney instruments for many of our clients, especially elderly clients and those at high risk of incapacity. A power of attorney is often used as a means of incapacity planning. A well-drafted power of attorney can eliminate the need to have a court appoint a guardian if the principal is incapacitated. For example, if the principal is diagnosed with dementia, a power of attorney allows someone else to act on the principal’s behalf once the principal is unable to do so.

PTM Provides Power of Attorney Services in the Following Areas

Power of Attorney in Gainesville, FL

We are happy to meet with any of our clients in our office located in Gainesville, FL. The office is found off of Tower Road. Please make an appointment for your visit.

Power of Attorney all throughout the State of Florida

We are happy to meet with you either by phone or over zoom if you are not in the Gainesville area. Power of attorney instruments do not require in person conversations with a law firm; we represent clients from all across the state of Florida.

Power of Attorney FAQ

What are the different kinds of power of attorney in Florida?

A power of attorney in Florida can be either limited or general, depending on how much authority is given. Additionally, Florida allows for a power of attorney to be durable, meaning it continues even if the principal is incapacitated.

A limited power of attorney gives the agent the authority to perform a specific act, but no other power is granted. For example, the agent might have the power to transfer legal ownership of a specific parcel of real estate. In this example, the agent would have the power to transfer ownership of the real estate, but would not have the power to act on behalf of the principal in any other way.

A general power of attorney gives agent the authority to perform multiple acts. The document conveying the power of attorney must detail what those acts are in order for the power to be conveyed. For example, a general power of attorney might convey the power to pay bills, enter into contracts, and buy/sell property for the principal. However, each power granted must be named specifically in the general power of attorney. Sweeping language like “I grant the general authority to engage in any transaction or business on my behalf” will likely fail. Thus, the drafting attorney must be careful to think through which powers ought to be specifically mentioned in the document.

A power of attorney is classified as “durable” if it continues even if the principal is incapacitated. This is important to note because without any language making the power of attorney durable, the powers will become ineffective the moment the principal becomes incapacitated.

Most of the time when a power of attorney is used in an estate plan, the power is both general and durable. This is because the main goal of the estate plan power of attorney is typically to plan for incapacity. Thus, the principal needs the power to be broad so that all principal’s financial affairs can be properly handled, even if the principal is incapacitated. Additionally, the power needs to be durable so that it continues during the principal’s incapacity.

What is a medical power of attorney?

Sometimes people refer to a health care surrogate as having a “medical power of attorney”. In contrast, the power of attorney discussed on this page is sometimes called a “financial power of attorney”. The key distinction is that a health care surrogate makes medical decisions, while a financial power of attorney makes decisions about assets.

Can a power of attorney be signed after incapacity?

No, the principal cannot sign a power of attorney after the principal becomes incapacitated. The principal must be mentally competent and capable of understanding the implications and effects of the document being signed. Thus, if the principal is incapacitated and no valid power of attorney document has already been signed, a guardianship may need to be established by a court.

Do I need the original power of attorney document?

No, once a power of attorney has been validly executed, copies of the document have the same effect as the original, except in certain land transactions. However, what does matter is that the agent sign “as agent for” or “as attorney in fact for” the principal whenever a power of attorney is used. Otherwise there could be confusion as to whether the agent is acting on the principal’s behalf.

Can someone with power of attorney act in his or her own interest?

In Florida, an agent owes a fiduciary duty to the principal, requiring the agent to act in accordance with the principal’s interests and expectations. Misuse of an agent’s authority can lead to civil liability or even criminal consequences. However, a principal should be very careful in selecting an agent to hold power of attorney, as abuse of this power can still lead to serious problems for the principal.

When does a power of attorney take effect?

In Florida, a power of attorney takes effect immediately upon execution and delivery. Florida used to allow a “springing” power of attorney that would become effective only after certain conditions were met, such as incapacity. However, the Florida legislature has since disallowed this practice.

Does a durable power of attorney continue after death?

No, the agent’s authority under a durable power of attorney automatically terminates at the death of the principal. At that point, power over the assets will typically transfer to the personal representative, who is usually named in the principal’s will. However, a durable power of attorney does survive the principal’s incapacity.

Does everyone need to choose someone to have power of attorney?

No, each person’s needs are different. Whether you need someone with power of attorney depends on a number of factors, including your risk of becoming incapacitated. To find out if designating someone to have power of attorney would be a good idea for you, schedule an appointment with an estate planning attorney.

Contact a Power of Attorney Lawyer for a Free Consultation

PTM Trust and Estate Law is happy to answer your questions about power of attorney instruments. Please call 352-554-5576 or contact us online to schedule a free consultation. If you do not live near Gainesville, then we will be happy to schedule a free phone meeting instead.