Can a Power of Attorney Make Gifts?

In Florida, people have power-of-attorney documents as often as they have a will or a revocable trust. But mis-use of a “POA” causes concern. Many times, POAs take money or make gifts when they should not. So, can a Power of Attorney make gifts? To read about MISUSING a power of attorney, click this FREE LINK to Florida POA Law.

Power of Attorney in Florida

Let’s come out and say it : a power of attorney should not make gifts in Florida. There is even a special law about making gifts. Read Fla. Stat. 709.2202(1)(c) which prohibits making gifts ABSENT VERY SPECIFIC LANGUAGE AND PERMISSION.

BUT, doesn’t every rule have exceptions. Here are some important bullet points for power of attorney law in Florida. (For a free legal video on UNDERSTANDING POWER OF ATTORNEY, click HERE.)

• A power of attorney is a fiduciary
• The person who “gives” or “creates” a power of attorney is called the “principal“
• The POA is supposed to act in that person’s best interest
• The POA can and should spend the principal’s money — on the principal!
• The POA can use the power of attorney document to pay the principal’s bills
• The POA should not make gifts of the principal’s money unless the document specifically authorizes that
• The fiduciary should not make gifts of money or property to herself
• That’s called “self dealing” and is a “conflicted transaction” or a conflict of interest
• In unique or rare or limited circumstances, a principal might give the POA authority to make gifts to herself but it needs to be clear in the document

Making Gifts

A POA should not make gifts of the person’s money.

Why? ‘Cause it’s not yours. Think about it. If you are serving as a POA, that means that the person needs some help. Hey, might they need their money? Then why give it away?

But you see this all the time in Florida. People who use a POA to deed themselves a condo or make gifts to themselves or their children or lovers. To read about POA Theft, click this LINK.

Chapter 709, Part 2 of the Florida statutes is all about POA law. Read 709.2114. It tells you all about the role of the POA and her fiduciary duties.

Florida Law 709.2116 specifically deals with conflicts of interest.

Want to read more about Florida POAs and can a power of attorney make gifts? Click this LINK for serious, free and substantive commentary and analysis of POA law in Fla.