A Florida durable power of attorney must be signed by you before two witnesses and a notary (section 709.2105) and must state that it is not terminated by your later incapacity (section 709.2104). It takes effect when signed, since Florida no longer allows new springing powers, and it ends at your death.
Most people think of estate planning as something that matters after death. A durable power of attorney is one of the documents that matters most while you are still alive. If an illness, accident or decline in memory leaves you unable to manage your finances, this document lets a person you chose step in and keep your affairs running.
What a durable power of attorney does
A power of attorney is a written document in which you, the principal, give another person, your agent, authority to act for you in financial and legal matters. "Durable" means the authority continues even if you later become incapacitated, which is exactly when your family needs it.
Depending on the powers you grant, your agent may be able to:
- Pay your bills and manage your bank accounts.
- Deal with insurance companies, government agencies and financial institutions.
- Handle real estate, including signing documents for a sale or a lease.
- Manage investments and file tax returns.
- Transfer assets into your revocable living trust, if you specifically allow it.
A durable power of attorney covers financial matters. Medical decisions are handled by a separate document, the health care surrogate designation.
Florida power of attorney requirements
Chapter 709 of the Florida Statutes sets the rules. These are the points people most often miss:
- Durable wording. A power of attorney is not automatically durable in Florida. Under section 709.2104, it must say that it is not terminated by your later incapacity, or use similar words showing you intend the authority to continue. Without that language, the power ends when you lose capacity, which defeats the purpose.
- Two witnesses and a notary. Under section 709.2105, the principal must sign before two subscribing witnesses and acknowledge the signature before a notary. A power of attorney signed without them may be refused by banks and other institutions.
- No new springing powers. Some states allow a power of attorney that "springs" into effect only when you become incapacitated. Florida does not allow new springing powers. Under section 709.2108, a power of attorney executed after October 1, 2011 is effective when it is signed.
- Certain powers need your initials. Under section 709.2202, some significant powers, such as creating or changing a trust, are only valid if you separately initial or sign next to each one. A general clause granting "all powers" is not enough for these.
Who can serve as your agent
Under section 709.2105, your agent must be either a person who is at least 18 years old or a financial institution with trust powers that has a place of business in Florida and is authorized to do trust business here. Within those limits, the choice is yours.
Your agent will have real authority over your finances, so think about honesty first, then organization and availability. Many people choose a spouse, an adult child or a close friend. You can also name a successor agent who steps in if your first choice cannot serve. We can talk through the options and help you decide which powers to grant and which to leave out.
When a Florida power of attorney ends
Section 709.2109 lists when a power of attorney terminates. The main events are:
- Your death. Your agent's authority ends when you die. From that point, your will or trust, and the personal representative or trustee you named, take over.
- Revocation. You can revoke the power of attorney while you have capacity.
- A court finding of incapacity. If a court finds you totally or partially incapacitated, the power generally ends unless the court allows the agent to keep exercising certain authority.
- Loss of capacity, if the power is not durable. This is why the durable wording matters so much.
The power also ends if its own terms say so, if its purpose is accomplished, or if your agent can no longer serve and no successor was named. Naming a successor agent avoids that last problem.
What happens if you do not have one
If you become unable to manage your finances and have no valid durable power of attorney, your family may need to go to court to have a guardian appointed. Guardianship takes time, involves ongoing court supervision and means a judge, not you, decides who manages your affairs. A properly signed power of attorney is a simple way to avoid that.
Already have a power of attorney?
If yours was signed in another state, or before Florida's current rules took effect, it is worth a review. Institutions sometimes question older or out of state documents, and the rules on witnesses, durable wording, springing powers and initialed powers may not have been followed. A short review now can prevent a frustrating delay later.
How we help
As your power of attorney lawyer, we explain each power in plain English, prepare a document that fits your situation, add the initialed powers you want and supervise the signing with witnesses and a notary. Most clients sign a durable power of attorney as part of a complete Florida estate plan alongside a will or trust, a health care surrogate designation and a living will.
