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What is a Power of Attorney?

attorney discussing power of attorney to an elder couple

A power of attorney (POA) is a critical part of any comprehensive estate plan. It is a legal document that allows you to to plan for your potential incapacitation by designating an agent to act on your behalf.

In Florida, a power of attorney is typically used for two reasons: 1) to allow your agent to handle financial matters on your behalf (a financial power of attorney) and 2) to allow your agent to make health care decisions on your behalf (healthcare power of attorney).

What are the Types of Powers of Attorney in Florida?

There are several different types of power attorneys. Each serves a different purpose, and a person can create more than one power of attorney. A Naples estate planning attorney can help you choose the right power of attorney to meet your needs.

1. Durable Power of Attorney

A durable power of attorney allows your agent to continue acting on your behalf if you become incapacitated. It remains in effect until your death, or you revoke the document. Under Florida law, it must contain special wording that provides that the power of attorney survives the principal’s incapacity. Having a durable power of attorney reduces the potential need for a court-appointed guardian. This is helpful because appointing a guardian can be time-consuming and expensive. In Naples, most powers of attorney are durable.

2. General Power of Attorney

A general power of attorney gives your agent the complete authority to act on your behalf in almost all situations. However, in Florida, broad grants of authority allowing the agent “to do everything that the grantor could do” are invalid. The types of acts that an agent is authorized to perform must be expressly granted in the document.

3. Limited Power of Attorney

A limited power of attorney (sometimes referred to as special or specific power of attorney) defines a specific action that the agent is authorized to take on behalf of the principal. For example, you could create a limited power of attorney that gives your agent the authority to sign loan documents, sell a car, or handle a tax matter. A limited power of attorney is helpful to create when you cannot complete a transaction because of a prior commitment or illness. Once the purpose or duration ends, the agent’s authority ends.

4. Springing Power of Attorney

In some states, it is possible to establish something called a  “springing” power of attorney. This process involves setting up in the document which only becomes active upon your incapacitation. As of 2011, Florida law no longer allows for this type of POA. Instead, a durable power of attorney is effective immediately upon proper signing.

Do You Need an Attorney to Create a Power of Attorney in Naples?

It is always smart to use an attorney when making a power of attorney in Florida, even though it is not required under the law. Using a DIY form that you find online may fail to provide the protection desired. Three risks of not using an attorney to create a power of attorney in Naples include:

1. The Power of Attorney May Not Be Legally Valid. There are certain requirements that your power of attorney must meet for the document to be legally binding. For example, all Florida powers of attorney must be signed before two witnesses and a notary.

2. It May Not Conform to Florida State Law. Every state has its own laws relating to powers of attorney. Many DIY power of attorney forms are not state-specific and may not conform to Florida law. Laws can change, so even if the form says it is specific to Florida, there is no guarantee that it reflects the current law.

3. It Might Give Your Agent Too Much or Too Little Power. When you create a power of attorney on your own, you may not understand the scope of the power you are giving or the limitations that you are placing. An experienced attorney will help you help pinpoint which powers you should grant and create a power of attorney unique to your specific needs.

Call A Naples Estate Planning Lawyer

If you have questions about creating a power of attorney, you should contact Nici Law Firm. James R. Nici is an experienced Naples attorney with over 25 years of experience. He is well versed in these issues and can create an estate plan that fits your needs. Contact our office today at (239) 449-6150 or use our web form to set up a free consultation.

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