Is Your Durable Power of Attorney Valid in the state of Florida?

Power of Attorney. You hear about them all the time, in the media, in the movies, in books and among your family and friends. But what exactly is a Power of Attorney and when is the last time you checked if yours was valid? A power of attorney is a legal document that conveys authority from the principal (the person that is the maker of the power of attorney) to their selected agent (sometimes referred to as the attorney-in-fact). The principal is essentially granting their agent rights to act on their behalf. A power of attorney may be broad or specific depending on what powers the principal wants to convey to the agent. For example, a limited power of attorney may only give the agent powers over a specific piece of real estate in one transaction. This is a very limited scope and purpose.

In Florida it is common to see Durable Power of Attorneys drafted. This is a special kind of power of attorney that does not terminate if the principal becomes incapacitated like a typical power of attorney. A Durable Power of Attorney remains effective even when the principal becomes incapacitated (however it is limited to some exceptions specified under Florida Law). A Durable Power of Attorney must contain special wording inside of the document that specifies the agent’s powers survive the incapacitation of the principal.

A Durable Power of Attorney is valid once properly executed and can help prevent the need for the court appointing a guardian over the incapacitated person. In order to avoid the guardianship appointment that would be necessary in court, the Durable Power of Attorney must have been validly executed before the incapacitation of the principal occurs. The agent must also have all the appropriate and necessary powers granted to him or her through the Durable Power of Attorney.

In the state of Florida people need to be aware if they have a Durable Power of Attorney that was executed after September 30th, 2011 and if it lists that the agent’s powers become effective upon the triggering event of a physician certifying that the principal is incapacitated. These types of powers are sometimes referred to as “Springing” powers, and are no longer valid in the state of Florida, unless the Durable Power of Attorney was executed before October 1st, 2011. If this springing Durable Power of Attorney was executed before this date, then they are grandfathered in and will still be considered valid under the laws of the state of Florida.

If you had a Durable Power of Attorney drafted years ago, it is important to double check the date of execution and verify if a triggering event/springing event must initially occur, such as a physician certifying that the principal is incapacitated, for the agent’s powers to become effective. It is crucial to determine that your Durable Power of Attorney is valid and in compliance with the laws of the state of Florida, while you still have capacity and time to have them redrafted in the event that they need to be updated or brought into compliance.