Florida Power of Attorney
Are Florida Powers of Attorney the Most Dangerous Documents in the World?
Ask any Florida estate planning attorney, and they will tell you that a power of attorney, or “POA“, is a standard document that they write for their clients. From Boca Raton to Palm Beach, from Miami-Dade to Martin County and all across the Sunshine State, everyone seems to have a power of attorney just like a Last Will and Revocable Trust.
In fact, these power of attorney documents are so important that the Florida legislature created an entirely new law on powers of attorney. You can read all about POA’s in Chapter 709 of the Florida Statutes.
Powers of attorney can help you with a limited, focused matter, like giving someone the power to sell your Florida real estate or file your tax returns. Durable powers of attorney, however, can be much broader and powerful with great authority, such as to help you protect and manage your property when you can’t, such as when you are incapacitated or incompetent. That’s why many guardianship lawyers in Florida want to know, right away, whether someone has a POA when there is a guardianship filed against them. Having a power of attorney may mean that you don’t need a guardianship.
But, powers of attorney are the source of some probate litigation in Florida . Why? Because sometimes relatives, neighbors, or even 2nd or 3rd spouses, or adult step-children, mis-use Florida powers of attorney. How does someone mis-use a POA? Well first and foremost, the person who has been given, or granted, the authority is called an “agent” or attorney in fact. But make no mistake: the person who is the “POA” is a fiduciary. That means that the power of attorney can only be used for the principal’s benefit–for the sole and exclusive benefit of the person who created the power of attorney. People mis-use the power of attorney document when they steal or commit fraud. Like what? Well, if you deed a person’s real estate to yourself, or take the person’s name off a bank account and put your name on the title, with a power of attorney, that’s bad. If you take money or steal money with a power of attorney, that’s bad. If you mis-use the power of attorney, you can be responsible for civil damages. If you agree to be the power of attorney for someone, remember that you are supposed to use that power of attorney, and any money or property for the sole benefit of the person who you agreed to help and serve: NOT yourself. Fiduciaries, like trustees, guardians and POA’s should not self deal. If you self deal or engage in conflicts of interest or so called “conflicted transactions”, those may be void or voidable, subjecting you to damages and maybe attorneys fees and costs. While we do have a, now, fairly, new law in Florida on POAs which explain fiduciary duties and compensation for a POA, many legal principles have not changed. The POA should work for the client or principal or creator of the power of attorney. A power of attorney in the wrong hands can be financially dangerous to you. A bad person with a POA can make that POA document the most dangerous document in your financial world.
If you are thinking about creating a power of attorney, there is a very important consideration. Do you want your POA to be able to change your trust or your bank accounts or your beneficiaries? Can your POA change the beneficiary of your $5 Million life insurance policy, for example, from your wife of 3 years, to your adult daughter from your first marriage? Can your POA put her name on the title to your bank account and make it a joint account with a right of survivorship? If you want your POA to be able to change your estate plan, you need to consider reading the Florida Law Chapter 709 about so called Florida Super-Powers.
You also need to talk to your estate lawyer about who you are choosing to serve as your power of attorney, and what authority you want to give to them. If you have a 2nd or 3rd spouse who is NOT the parent of your children, be very careful. If you become incompetent or incapacitated, they may fight over what is going on with your property, who has power to use your money and what the power of attorney can do. You should also talk to a guardianship lawyer in Florida if you want to know how a power of attorney works if your kids or spouse file a guardianship against you.
