A Florida Durable Power of Attorney is a legal document/form that grants power to the attorney-in-fact or agent, who can make decisions or perform certain functions for a principal when they are unable to do so for themselves.
This POA is governed by Title XL, Chapter 709, Part II (Powers of Attorney). For example, a power of attorney (POA) might allow the principal to grant their friend to pay their bills, file taxes, manage real estate, etc., on their behalf. There are several different Florida durable power of attorney (POA), including Health Care and Financial Powers of Attorney etc. Since the document is durable, it will still be in effect even if it is not renewed, revoked, or amended.
The agent holds all powers granted in the document even after the principal becomes incapacitated – this means that the agent can make decisions for the owner when they cannot do so themselves – hence the term “durable.” A durable POA is a binding agreement between the two parties, and the agent is expected to act in the principal’s best interests. There are two versions of a durable POA in Florida – Standard Version and JudcialTitle.org Version.
At its most basic, a durable power of attorney is the same as a power of attorney. However, the durable power of attorney does not end – the term “durable” means that it will continue despite any change in the principal’s mental or physical condition. On the other hand, a non-durable power of attorney ends when the principal becomes incapacitated or unable to handle their affairs.
This article will highlight the requirements of a durable power of attorney in Florida and how principals can fill one.
Florida Durable POA Laws and Requirements
The person granting authority must be 18 years or older, a resident of Florida, and able to sign a legal document. For the power of attorney to be deemed durable in Florida, it should include the declaration – “This durable power of attorney is not terminated by subsequent incapacity of the principal except as provided in chapter 709, Florida Statutes” or similar inference. Florida Stat. §§ 709.2101 et seq. provide relevant laws for FL durable POA. Without the declaration, the POA cannot be presumed durable.
No durability language is required per (Florida Stat. § 709.2104) for this form. According to (§ 709.2105(2)), the POA should be signed by the principal and two witnesses in the presence of a notary public. This document also requires notarization as per (Florida Stat. § 709.2105). No statutory form is needed.
How to Fill out DPOA Florida Form?
A DPOA is a legal document, and therefore it must be prepared with careful consideration to ensure there is no confusion in what is being communicated. This is important to avoid disputes down the line.
To achieve this, completing a durable power of attorney in Florida can be done in four simple steps as discussed below:
Designate an agent
The first step is to select an attorney-in-fact. The agent should be someone trustworthy and who acts in the principal’s best interests. The agent may be a family member, friend, or professional entity. The agent’s details should then be included in Florida durable power of attorney form. This can include their name and address. The principal can appoint more than one agent – that is, the primary attorney-in-fact and co-agents/successor agents.
The next step is to grant the agent(s) authority to act on the principal’s behalf. The form should specify what functions and powers the agent are being granted. Next, select an effective date – This should be under the state laws – generally, a durable power of attorney in Florida is effective from the date it was signed. If this is not possible, then the document can be executed at any time in the future.
Note that the principal can specify authority limitations. Once this has been completed, an authorization list can be filled in, which specifies all the functions that are not granted to the agent(s). It is important to note that these limitations may be changed or amended at any time by a subsequent document signed by the principal.
Check form durability
After completing the above, the principal should review the durable power of attorney form to ensure it has been appropriately filled out. In addition, they should check whether the appropriate and legal-specific language is stipulated under (709.2102(9)). A lawyer can be consulted at this stage to verify the document’s durability.
Sign and date the form
Lastly, the document should be signed and dated. The capacity of each signatory should be identified – that is, principal, agent, witnesses, and notary public. Each party must supply the date of signing next to their signature.
Here are free Florida durable power of attorney forms for you:
Storage and Usage of DPOA form in Florida
Once Florida durable power of attorney has been completed, it can be executed as specified. The agent and other involved third parties should be given a document copy. The principal should then keep the original copy and safeguard it for future reference. Other aspects that should be factored in include:
Signing on behalf of the principal
Ordinarily, since the durable power of attorney is a legal document, it can only be signed by a person holding the authority i.e., the principal. However, under exceptional circumstances, like when the principal is physically unable to sign, the agent can sign the document provided the principal is present. This is important since it ensures the validity of the document, and if contested, it can ensure that there will be enough evidence to support its validity. Witnesses must also be present, as well as the notary public.
Revoking a DPOA
A DPOA is effective until the party files a revocation with their local probate court. Durable POAs can be revoked due to various reasons. For example, in case a DPOA has been signed, and the principal later wants to cancel a power of attorney, it should be revoked in two ways. Firstly, by serving a formal notice as soon as is practicable. Both parties should keep a copy of the revocation notice, and copies should be sent to third parties who can rely on the provisions of a power of attorney.
Secondly, the durable power of attorney can be revoked by creating a new power of attorney, nullifying the existing POA. A principal cannot revoke an existing durable power of attorney if they are incapacitated or not of sound mind. However, another person, such as a spouse, can petition to revoke an existing power of attorney with a justifiable reason through the court.
A durable power of attorney form in Florida is an effective way to ensure that the wishes of the principal who is incapacitated are carried out even after they are unable to do so. It is crucial that the principal carefully considers every aspect of the document to ensure no room for legal disputes.
The durable power of attorney should be regularly updated to cater to changes in the principal’s financial situation, personal life, and goals. By ensuring that all parties are aware of the existence and terms of this document, the DPOA makes it easier to identify lawsuits if they occur since everyone is on the same page.
The preparation and execution of the durable POA are subjected to Florida state laws. In light of this, it is prudent to consult with a lawyer for severe matters and ensure a legally enforceable durable power of attorney in Florida is created.