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.