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15 Things To Know About Power of Attorney Florida

picture of a power of attorney

Are you thinking of setting up a power of attorney in Florida? Here are 15 things you should know.

1. What Is a Power of Attorney and Why Is It Important?

A power of attorney is a legal document. It authorizes an individual to act as your representative. 

What are Some Uses of a Power of Attorney?

  • Typically, it is used so a person can step in when needed. This person can pay your bills or handle other financial or real estate matters. This could  be the case if someone travels overseas.Another example is when a person is absent for a longer period of time or has an accident. 
  • In case you have an upcoming surgery you want to empower someone to represent your interests. 
  • In case you get an alzheimer’s or dementia diagnosis you want to name a trusted person that can take over making financial, health and legal decisions for you.

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2. What is the Difference Between a Power of Attorney and a Durable Power of Attorney?

A general power of attorney ends the moment you become incapacitated. In contrast, a durable power of attorney normally stays effective until the principal dies or until they act to revoke the power. 

3. Power of Attorney in Case of Mental Incompetence

The durable power of attorney was created to allow the assigned power of attorney to remain in effect after the principal becomes mentally incompetent. This means

  • Someone being unable to make informed decisions. 
  • A person is incapable of communicating decisions
  • One suffers from a poor state of health. This means he or she  is mentally disabled or incapacitated.
  • A person is in a coma or unconsciousness

4. What is a Financial Power of Attorney in Florida

You can give a financial power of attorney in Florida to make sure that someone else can handle all your assets and responsibilities on your behalf. But what do you need to consider when choosing someone to act on your behalf?

  • The person must be trustworthy
  • Your agent should be qualified
  • You need to give a detailed briefing to the agent on how you expect them to handle the responsibilities by giving some guidelines, for example regarding the risk of investments. 

5. What is a Medical Power of Attorney

You can give  a temporary medical power of attorney or one for long-term care. Usually a medical power of attorney will only go into effect when you do not have the capacity to make health decisions for yourself. Usually this legal document is designed for the following cases:

  • Personal care management
  • Hiring a personal care assistant
  • Deciding on a specific or general medical treatment
  • End of life treatment options

You want to make sure the agent has knowledge of what really matters to you. Just keep in mind that it is nearly impossible to define and describe all questions and decisions that might come up. In addition, you might want to consider that your agent should get different medical opinions before making a decision on your behalf.

Health care power of attorney responsibilities

Section 765.205 of the Florida Statutes states that your healthcare surrogate holds authority over all of your healthcare decisions. But you are certainly allowed to add more specific instructions in your medical power of attorney document. 

Depending on your situation, you may specify that, should you become incapacitated, your agent will hold the right to: 

  • Obtain and review relevant medical records
  • Approve the use of medications
  • Place you in an assisted living facility or nursing home
  • Apply for public benefits such as Medicare or Medicaid
  • Obtain access to the income and asset information necessary to apply for public benefits

You can also add what kind of facility or medication you prefer or want to exclude.

6. Who should you choose as an agent for your Power of Attorney in Florida?

One of the first questions you might want to ask yourself is if you want to give power of attorney to one person or two different people. One of the reasons is that your preferred agent might not live in Florida. In addition, people have different strengths and qualifications.

 One option is to hire a professional person for your financial assets. In contrast, your medical decisions should be made by someone who has similar values like you do. They should fight for your rights, especially rehabilitation. On the other hand they need to be realistic and sensitive when it comes to the end of life. 

Also consider if you want to implement controlling options. Get a financial advisor or tax accountant to check your finances independently once a year. Also get someone to check on your health independently even if you are in professional care. This could give you peace of mind. 

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7. How to Set Up a Power of Attorney in Florida?

The power of attorney is an important part of lifetime planning. Also a power of attorney is accepted in all states, the rules and requirements differ from state to state.

Does a power of attorney need witnesses or a notary?

According to the Florida bar, a power of attorney must be signed by the principal and by two witnesses to the principal’s signature. In addition, a notary must acknowledge the principal’s signature. Otherwise your power of attorney is not properly executed and valid under Florida law.

How long does it take to get power of attorney in Florida?

Power of Attorney does not need to be recorded in Florida to be a valid document, it can be done quickly. The only time challenge is setting up a date with all parties including the notary.

In Florida you can get online forms.

8. How long does power of attorney last in Florida?

The power of attorney is effective as soon as the principal signs it.  But how long is a power of attorney good for? Does a power of attorney expire?

Typically, the power of attorney ends if one of the following things happens

  • The principal revokes it.
  • The persons becomes mentally incompetent. As a result,a court determines that the principal is totally or partially incapacitated and does not specifically provide that the power of attorney is to remain in force.
  • A power of attorney has an expiration date.
  • A death
  • The purpose of the power of attorney is completed.

9. How to Remove Power of Attorney?

There are cases where the principal decided to remove the power of attorney in case of  abuse or negligence for example. In this case you want to know how to take power of attorney away from someone. This must be in writing and may be done by a subsequent power of attorney. 

It is important to notify  the agent and any other party who might rely on the power. Thus, you want to use any form of mail that requires a signed receipt. But be aware that some banks or financial institutions have special revocation requirements.

To be on the safe side, consult with a lawyer to be sure proper procedures are followed.

10. Who Can Override a Power of Attorney in Florida?

If family members or others come to the conclusion that the power of attorney is abused for example, they can file a petition in court challenging the agent. If the court finds the agent is not acting in the principal’s best interest, the court can revoke the power of attorney and appoint a guardian.

11. What Are The Duties of a Person Who Has Power of Attorney?

There is a certain code of conduct for agents. According to the Floridabar  “An agent is looked upon as a “fiduciary” under the law. A fiduciary relationship is one of trust. If the agent violates this trust, the law may punish the agent both civilly (by ordering the payment of restitution and punishment money) and criminally (probation or jail). The standards of care that apply to agents are discussed under “Financial Management and the Liability of an Agent.”  In case of a health care power of attorney, these are the most common responsibilities of your healthcare surrogate:

  •  authority over all of your healthcare decisions
  • should you become incapacitated, your agent will hold the power to:
  • Obtain and review relevant medical records
  • Approve the use of medications
  • Place you in an assisted living facility or nursing home
  • Apply for public benefits such as Medicare or Medicaid
  • Obtain access to the income and asset information necessary to apply for public benefits

12. What is the difference between power of attorney and guardianship?

The duties and powers of an attorney and guardian are essentially the same. The major difference is in how they are appointed. As long as the principal has given his agent all necessary power of attorney, a court has no need to appoint a guardian.  

13. Who Has Power of Attorney After Death if There is No Will in Florida?

The power of attorney usually ends with the death of the principal. If there is no will, a court needs to appoint an administrator to settle the estate. An Agent  can apply to the court to be appointed as administrator. If there is no surviving spouse or children, the court is likely to agree to let the agent do the job.

14. Can You Get Power of Attorney for Someone With Dementia?

As soon as a family can see the first signs of Alzheimer`s they should get the family member to sign a durable power of attorney. The reason is that  if the person who is suffering from dementia or Alzheimer’s can no longer make their own decisions, they are not legally able to sign a power of attorney form anymore. In this case  courts will likely need to get involved to appoint an individual to help manage the person’s affairs.

15. Does Power of Attorney Override Spouse?

The principal’s power of attorney only authorizes the designated agent to act on behalf of the principal—not anyone else. The agent cannot act on behalf of the principal’s spouse, and the spouse does not have the power to terminate or modify the principal’s POA.

Antje Diana Baumgarten

Antje Diana Baumgarten

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