There are various types of Powers of Attorney instruments which contain specific language delegating the agent powers to act on behalf of the maker (“principal”). The language contained in the instrument sets forth what authority is granted to the attorney-in-fact (“agent”).
TYPES OF POWER OF ATTORNEY
Whether it is a Will or a Trust, most estate planning packages contain a Durable Power of Attorney for both Health Care and Finance to ensure client’s needs are met during their lifetime. The powers granted to an agent are contingent upon whether the instrument is a durable, general or limited. The days of generic powers of attorney are no longer valid as of the 2011 statute change which requires very specific language for each power granted to an agent.
Durable Power of Attorney: The most common power of attorney is the durable. What differentiates the Durable Power of Attorney from both the general or limited is that a durable remains in effect even if the principal becomes incapacitated. As long as the instrument contains specific language pursuant to section 709.2104, Florida Statutes (2011) such as “This durable power of attorney is not terminated by subsequent incapacity of the principal except as provided in chapter 709, Florida Statutes” or such other language stating the principal’s intent that authority granted is exercisable in spite of the principal’s subsequent incapacity.
General Power of Attorney: The General Durable Power of Attorney grants very broad powers to the agent to perform any legal act on behalf of the principal. This instrument requires a list created specifying the activities the agent is authorized to perform.
Limited Power of Attorney: Usually, a Limited Power of Attorney is for a specific act such as granting a real estate agent to sell your home for you. Therefore, the instrument grants the agent the authority to conduct a specific act.
DO I NEED AN ORIGINAL POWER OF ATTORNEY OR CAN I USE A PHOTOCOPY OF THE POWER OF ATTORNEY?
Section 709.2106(5), Florida Statutes, states that a photocopy or electronically transmitted copy of an original Power of Attorney has the same effect as the original. Therefore, ensure the originals are safely deposited in a safe or safety deposit box to avoid an unscrupulous person from attempting to defraud you.
There are advantages and disadvantages to this change. On one hand, it is convenient to make a copy rather than execute several originals. On the other hand, if the power of attorney gets in the wrong hands, it may be altered and fraud may occur.
If you believe or are suspicious that your agent is breaching their fiduciary duty, squandering your assets, not properly investing your assets, self-dealing, or utilizing a Power of Attorney that has been altered, promptly contact an experienced and competent estate planning attorney who deals with litigation.
If you need assistance in Volusia County, Flagler County,Sumter County, Putnam County,Hillsborough County, Miami-Dade County, Broward County, or Palm Beach County contact Florida Guardianship Attorney Thomas Upchurch at (386) 272-7445 for a consultation. If your county is not listed, assistance may still be provided.
FULL DISCLOSURE
This article only reflects my personal views in my individual capacity. It does not necessarily represent the views of my law firm and is not sponsored or endorsed by them. The information contained in this article is based solely on opinion, and is provided only for educational purposes and is not intended to provide specific legal advice. No representation is made about the accuracy of the information posted in this article. Articles may or may not be updated and entries may be out-of-date at the time you view them.
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