How to Get a Durable Power of Attorney in Florida

A durable power of attorney allows you to pass authority to another person for them to complete necessary tasks and make tough decisions on your behalf. This document, unless revoked, remains effective even if you become incapacitated. However, a Florida durable power of attorney is only effective when it meets the state’s requirements for execution and legality.  

What is a durable power of attorney (DPOA)? 

A durable power of attorney (DPOA) is a legal document that allows you, the "principal," to give another person—an “agent" or “attorney-in-fact”—the legal authority to handle your affairs and make decisions on your behalf. These decisions could be related to your personal interests, estate, or financial matters, such as:

• Creating an inter vivos trust or living trust
• Investing in mutual funds or stocks
• Paying your monthly bills 
• Maintaining your real estate properties
• Running your business 
• Accessing your safe deposit box

An agent or attorney-in-fact chosen by the principal can only make healthcare decisions on your behalf when the durable POA explicitly grants that authority in the written agreement. Otherwise, they don’t have the authority to make those calls.

This legal document is often created as a precautionary measure. Say you become incapacitated due to a heart condition or lose your mental capacity due to dementia. Without a durable power of attorney, the court will have to appoint a guardian to represent you. This situation can create additional stress and financial burdens for your family and loved ones. 

The primary difference between a durable power of attorney versus a regular Florida power of attorney is that with a DPOA, your attorney-in-fact retains the authority to handle your affairs and finances even if you become mentally or physically incapacitated. In contrast, a regular power of attorney may become void if you are incapacitated. 

Types of powers of attorney

There are many kinds of powers of attorney and not all are equal in their power and scope. The state of Florida recognizes the following: 

• General power of attorney. This POA grants broad powers. For example, a general POA allows your agent to make financial and business related decisions on your behalf. They can pay a bill or purchase property. This power of attorney expires or loses its power if you become incapacitated. 
• Limited (special) power of attorney. This POA authorizes the agent to perform specific tasks or actions for a defined time period. This document becomes invalid after the task is completed or when the designated timeframe comes to an end. An example would be appointing an agent to sell a specific property of yours. 
• Durable power of attorney. This is similar to a catch-all general power of attorney but retains its authority and power when the person becomes unable to manage their own affairs as a result of a disability or illness. 
• Springing power of attorney. These POAs come into play after a certain “triggering” event, such as incapacitation. However, the Florida Power of Attorney Act no longer accepts "springing powers." This kind of POA created before October 1, 2011, may still be valid. 
• Florida real estate power of attorney (FREPAO). This document allows the agent/attorney-in-fact to execute a real estate transaction on your behalf  in Florida. Florida statutes mandate that this power of attorney states that the POA is still valid in case of the principal's incapacity.

Requirements for a durable POA in Florida

A durable power of attorney is a powerful document to have in your life-planning toolkit. For an effective and enforceable durable power of attorney, Florida law requires the document to meet certain guidelines:

• Specific wording. Durable powers of attorney in Florida must include the following wording: “This durable power of attorney is not terminated by subsequent incapacity of the principal except as provided in Chapter 709, Florida Statutes.“
• Detail the powers granted. Blanket powers are no longer recognized in Florida. Your durable power of attorney must list the specific authority granted to your agent, such as the ability to deposit and withdraw money from your bank account, the ability to collect owned money from third parties, or the ability to make healthcare decisions. If you don’t explicitly mention the authority specifically granted to your agent, Florida assumes you have deliberately omitted them. Therefore, the agent won’t have the authority to proceed. 
• Execution. The durable POA has to be signed by the principal (you) in front of two witnesses and a notary public. Only then will the written document hold up and be recognized by financial institutions and other entities.  
• Agent eligibility. As per Florida law (Fla. Stat. § 709.2105), the agent must be a living person above 18 years of age with a sound mind. You can pick a family member, friend, attorney, or even a financial institution that has the authority to conduct or manage trusts in the state. 

How to create a Florida durable power of attorney 

Here’s how to go about creating a valid durable power of attorney in Florida that will stand up to legal scrutiny.

Determine the powers to grant

The process starts with identifying what exactly you want your agent to be able to do for you. Do you want to give the agent the financial power to manage your estate? Or do you want someone who can make the difficult medical decisions, like what treatment to provide and for how long? Be specific about what powers you want the attorney-in-fact to have. Having a thorough grasp of what you want to achieve will also help you select the best person for the job. 

Select a trusted agent

Regardless of the durable powers you wish to give your agent, you want to pick someone you trust. A Florida durable power of attorney goes into effect immediately upon execution, and therefore you want someone reliable and competent who will respect, understand, and carry out your wishes. 

Some of the top qualities to look for in an agent are: 

• Competence. Do they have the required skill set to manage financial transactions or matters of estate? They don’t need to be a lawyer or medical professional, but they should know how to ask the right questions. 
• Availability. Do they have the time at hand to dedicate and act on your behalf? It’s a lot of responsibility and you don’t want someone who will rush through medical and financial decisions. 
• Location. There could be cases where you might need your agent present immediately at a hospital or emergency facility. Therefore, it’s best to choose someone who is nearby. 
• Communication style. An agent often serves as the glue between all relevant parties. Therefore, consider one’s communication style. How well are they able to express your wishes without causing friction? 

Also, consider appointing a backup attorney-in-fact. This will prevent problems that occur if your primary agent dies or becomes disabled while you are incapacitated.

Draft the document 

Florida doesn’t have a standardized durable power of attorney document that needs to be submitted to the state. However, in order to be a valid durable POA, your written agreement must include the specific phrase mentioned above. 

Online templates may seem to do the job, but understand that they come with limitations. For instance, the template might not include the exact wording required by Florida state statutes, or the language used may give too much control to your agent. Online templates can also be difficult to customize. 

It’s best to draft this major document with someone who has specialized expertise, like an elder law attorney. Non-elder law attorneys may not have knowledge of Florida Medicaid long-term care or estate planning regulations. Elder law or estate planning attorneys can help you structure the durable power of attorney document to protect your interests and hold the agent accountable for any wrongdoings.

Include the necessary language

As per Florida law, a durable POA must include specific language in order to be legal and enforceable. A few phrases or language points to keep in mind:

• The POA must mention that the durable power of attorney is not terminated by the principal's incapacitation.
• The POA must correctly identify the principal and agent.
• The POA needs to specify powers to the agent.
• The POA must include space for the signatures of the principal, witnesses, and the notary official.

Sign and notarize

Florida mandates that your durable power of attorney is signed before two qualified witnesses and a notary public. This step not only confirms your identity as the principal, but also legalizes the document. 

Be sure to store this document in a safe space alongside your other estate planning paperwork. Proper storage can reduce potential delays or challenges when the agent needs to act on your behalf. Provide a copy to your agent and other relevant parties such as your spouse, estate executor, attorney, medical team, and bank’s legal department. 

How and when to revoke a durable power of attorney

Say you want to make changes to your durable power of attorney. Maybe there's a significant change in your financial standing or business operations, perhaps you’ve gotten divorced or married, or maybe you simply feel the agent can no longer handle your affairs to your satisfaction. As per Florida statute, you can’t amend your durable power of attorney. 

Instead, you must revoke the previously established Florida power of attorney form. This too must be done by the books. Failure to do so may keep the existing durable power of attorney, which may no longer best represent your intents and interests, in effect.

You must draft a new document that explicitly states you want to revoke the previously executed POA. The document should include your name, the agent’s information, and date of the original durable POA was executed. Get the new POA signed in front of two witnesses and a notary official to make it legally binding. It’s your responsibility to inform all the concerned parties of the revocation. 

FAQs

When does a durable power of attorney take effect in Florida? 

A Florida power of attorney form is immediately effective upon the signing in the presence of a witness and notary. It doesn’t come into effect only when you become incapacitated. Therefore, you need to appoint a capable attorney-in-fact that you wholeheartedly trust. 

How do I choose an agent for my durable POA?

This is a personal decision. However, you need to ensure that your agent meets the Sunshine State’s eligibility requirements, such as being over 18 years of age and of sound mind. Other qualities to look for are reliability, the capability to understand finances and medical issues, and availability.

We also recommend choosing someone who is a good communicator as your agent will be the main liaison for your family members, medical professionals, and other parties. 

Can I have more than one agent in a durable power of attorney in FL?

You can certainly list multiple agents in your durable power of attorney in Florida. Florida law also allows co-agents to act independently of each other, although this can be problematic.

For example, your appointed agents might disagree on an issue and act against each other, which could go against your best interests. Therefore, before naming multiple agents in your durable POA, consult an estate planning attorney. They can assess your situation and advise on the best course of action.

Is a durable power of attorney valid after death? 

No, it’s not. A durable power of attorney automatically expires or terminates upon the principal’s death. A last will and testament is an estate planning document that helps protect your assets after your death. An executor of estate or personal representative is the person responsible for managing one's estate after their death.

What is a health care surrogate?

A health care surrogate designation is a kind of durable power of attorney document that offers greater power over medical decisions. The form includes more details pertaining to making health care decisions such as treatment or end-of-life care on your behalf. Both a Florida health care surrogate form and a durable power of attorney can be good tools in a comprehensive estate plan.

Are financial institutions required to honor my Florida durable power of attorney form?

A financial institution can only reject a valid POA with a legal and valid reason. Otherwise, they may be on the hook for paying for any damages you incur, like attorney's fees or mismanaged funds. Many financial institutions are known to turn away power of attorney documents that are too old. Therefore, it is best to keep your durable power of attorney form updated.

An estate planning attorney can help you overcome any barriers to your valid power of attorney form being accepted.