Category: Law

POWERS OF ATTORNEY – Part 2

Powers of attorney in Florida are governed by the Florida Power of Attorney Act (“the FPAA). The following is a brief outline of the provisions of the statutes regulating the validity and enforceability of powers of attorney in Florida.

A power of attorney is defined in Florida Statute 709.2402, as a writing that grants authority to an agent to act in the place of the principal. The statute provides that “durable powers of attorney” are not terminated by the subsequent incapacity of the principal, while non-durable powers of attorney are terminated in the event the principal becomes incapacitated. According to the statute, the term incapacitated means that an individual “is unable to take those actions necessary to obtain, administer, and dispose of the individual’s property and income.”

While originals of the document or often required for recording in the county recorder’s office when a power of attorney is being used to convey real estate, the statute provides that a photocopy of the document has the same legal effect as the original. Powers of attorney executed after October 1, 2011 must be signed by the principal and by two subscribing witnesses and acknowledged before a notary public or as otherwise provided in F.S. 695.03. People often ask whether powers of attorney executed in other states are valid in Florida. The statute provides that foreign powers of attorney are valid if executed in accordance with the laws of the state in which they were executed.

Powers of attorney terminate under following circumstances, among others. 1) when the principal dies; 2) upon the principal being adjudicated incompetent by a court, unless the court orders otherwise; 3) the principal revokes the power of attorney, or 4) if a power of attorney is not durable, upon the incapacity of the principal.

A power of attorney may be revoked by either executing a subsequent power of attorney which includes specific language providing for the revocation of the previous power of attorney. A principal may also revoke a power of attorney by a signed written document expressing the revocation.

The above is a brief summary of powers of attorney in Florida and does not cover all of the tangential issues involved in enforcing powers of attorney and the relation of third parties to the principal and agent acting pursuant to the powers.

REVOCABLE TRUSTS

Revocable trusts have become synonymous with probate avoidance, cost savings, and other benefits. Revocable trusts can definitely offer benefits depending on the types of assets you own and the number and type of family members involved in the equation. Despite, these benefits, it is necessary to understand collateral issues related to trusts, and certain steps must be followed to ensure that assets are properly titled in the name of the trust. Continue reading “REVOCABLE TRUSTS”

WILLS

People often ask whether a will is absolutely necessary. Estate planning has so many facets depending on the type of property involved and the identity of the heirs, whether homestead property is involved, that it is impossible to provide a simple answer. Generally speaking, it is best to always have a will as a back-up, even if you have other documents, such as a revocable trust, and even if all of your assets are jointly owned or have beneficiary designations.
Continue reading “WILLS”

POWERS OF ATTORNEY

A power of attorney is a document whereby an individual (“the principal”) designates that another person (“the agent” or “attorney in fact”) has powers to act for the principal in a variety of situations. A power of attorney must be executed by the principal and subscribed by two witnesses, and it must be notarized.

The powers given to the agent must be identified in the document itself. These powers can include, the power to sell real property of the principal, conduct banking transactions, apply for government benefits, etc. A power of attorney is considered “durable” if certain specific language is used in the power of attorney. If a power of attorney is durable, it means that it is still effective, even if the principal is incapacitated. Powers of attorney drafted in other states are effective in Florida, if they were executed in accordance with the laws of that state.

If the principal wants to provide the agent with certain powers, such as the power to make gifts of the principal’s property or to revoke or create a trust for the principal, the principal must either sign or initial next to the line where these powers are given. Because these powers can be abused, the legislature wants to ensure that the principal is aware that these powers are being given to the agent.

Many issues can arise relating to powers of attorney. Some third parties are hesitant to accept these documents, and further steps may be required. While there are self-help forms available online which appear fairly straightforward, it is probably best to have an attorney draft these for you, as there are potential pitfalls which an attorney can help you avoid by including the appropriate provisions in your documents. Care must always be used in choosing the appropriate agent, as there is always a risk that the wrong person will abuse the powers which he or she is given.

Powers of attorney are powerful documents which can potentially override the most thoroughly planned estates. If you have any issues related to powers of attorneys, contact our offices today.

PROBATE

In layman’s terms, probate is the legal mechanism used to distribute the property of a person who has passed to the heirs or beneficiaries and by which creditors of that person are paid (people to whom the decedent owed money)to the extent assets are available to pay these claims. There are many steps involved in the probate process, all of which Continue reading “PROBATE”