What is a power of attorney? You may have heard a power of attorney referred to as a “POA”. A “POA” is a document that gives a specific person authorization to act on the behalf of another. According to Florida Statute 709.2012(9), ““Power of attorney” means a writing that grants authority to an agent to act in the place of the principal, whether or not the term is used in that writing.” What is an agent? Florida Statute 709.2012(1) states an agent, “means a person granted authority to act for a principal under a power of attorney, whether denominated an agent, attorney in fact, or otherwise. The term includes an original agent, co-agent, and successor agent.” What is a power of attorney? One can create a power of attorney, or “POA”, in order to have an agent deal with finances, legal issues, businesses and more.
What is a Power of Attorney?
What is a power of attorney? A “POA” can seem pretty all-encompassing. It depends on what the power of attorney is being used for. Sometimes a power of attorney may be general or sometimes it may be for a specific thing. For instance, you may have someone act as your agent to sell your real property on your behalf. This would be an example of a special power of attorney, if it were only to authorize someone to sell this one piece of real estate on your behalf. Perhaps you are authorizing them to do so because you are not well, or simply because you want them to take care of the matter for you. This may make you ask additional questions. When would a power of attorney be effective? What are the agent’s duties in a “POA”? Let’s take a look.
When is a Power of Attorney effective?
If you were to have a power of attorney created for you, you would be the “principal”. The “agent” would act on your behalf. When would the power of attorney be effective? According to Florida Statute 709.2108:
When power of attorney is effective.—
(1) Except as provided in this section, a power of attorney is exercisable when executed.
(2) If a power of attorney executed before October 1, 2011, is conditioned on the principal’s lack of capacity and the power of attorney has not become exercisable before that date, the power of attorney is exercisable upon the delivery of the affidavit of a physician who has primary responsibility for the treatment and care of the principal and who is licensed to practice medicine or osteopathic medicine pursuant to chapter 458 or chapter 459 as of the date of the affidavit. The affidavit executed by the physician must state that the physician is licensed to practice medicine or osteopathic medicine pursuant to chapter 458 or chapter 459, that the physician is the primary physician who has responsibility for the treatment and care of the principal, and that the physician believes that the principal lacks the capacity to manage property.
(3) Except as provided in subsection (2) and s. 709.2106(4), a power of attorney is ineffective if the power of attorney provides that it is to become effective at a future date or upon the occurrence of a future event or contingency.” (2018).
As you can see, the Florida Statutes are very detailed, and cover a lot of ground. Our attorneys at Bret Jones, P.A. can help explain powers of attorney in more detail when you come and speak with us at our office. Let’s continue to take a look at an agent’s duties in a power of attorney.
What are an Agent’s Duties in a “POA”?
As we continue to explore, “what is a power of attorney?”, we take a look at an agent’s duties in a “POA”. An agent in a power of attorney has certain duties. Some of the duties are stated in Florida Statute 709.2114:
(1) An agent is a fiduciary. Notwithstanding the provisions in the power of attorney, an agent who has accepted appointment:
(a) Must act only within the scope of authority granted in the power of attorney. In exercising that authority, the agent:
1. May not act contrary to the principal’s reasonable expectations actually known by the agent;
2. Must act in good faith;
3. May not act in a manner that is contrary to the principal’s best interest, except as provided in paragraph (2)(d) and s. 709.2202; and
4. Must attempt to preserve the principal’s estate plan, to the extent actually known by the agent, if preserving the plan is consistent with the principal’s best interest based on all relevant factors, including:
a. The value and nature of the principal’s property;
b. The principal’s foreseeable obligations and need for maintenance;
c. Minimization of taxes, including income, estate, inheritance, generation-skipping transfer, and gift taxes;
d. Eligibility for a benefit, a program, or assistance under a statute or rule; and
e. The principal’s personal history of making or joining in making gifts;
(b) May not delegate authority to a third person except as authorized under s. 518.112 or this part or by executing a power of attorney on a form prescribed by a government or governmental subdivision, agency, or instrumentality for a governmental purpose;
(c) Must keep a record of all receipts, disbursements, and transactions made on behalf of the principal; and
(d) Must create and maintain an accurate inventory each time the agent accesses the principal’s safe-deposit box, if the power of attorney authorizes the agent to access the box.
(2) Except as otherwise provided in the power of attorney, an agent who has accepted appointment shall:
(a) Act loyally for the sole benefit of the principal;
(b) Act so as not to create a conflict of interest that impairs the agent’s ability to act impartially in the principal’s best interest;
(c) Act with the care, competence, and diligence ordinarily exercised by agents in similar circumstances; and
(d) Cooperate with a person who has authority to make health care decisions for the principal in order to carry out the principal’s reasonable expectations to the extent actually known by the agent and, otherwise, act in the principal’s best interest.
(3) An agent who acts in good faith is not liable to any beneficiary of the principal’s estate plan for failure to preserve the plan.
(4) If an agent is selected by the principal because of special skills or expertise possessed by the agent or in reliance on the agent’s representation that the agent has special skills or expertise, the special skills or expertise must be considered in determining whether the agent has acted with care, competence, and diligence under the circumstances.
(5) Absent a breach of duty to the principal, an agent is not liable if the value of the principal’s property declines.
(6) Except as otherwise provided in the power of attorney, an agent is not required to disclose receipts, disbursements, transactions conducted on behalf of the principal, or safe-deposit box inventories, unless ordered by a court or requested by the principal, a court-appointed guardian, another fiduciary acting for the principal, a governmental agency having authority to protect the welfare of the principal, or, upon the death of the principal, by the personal representative or successor in interest of the principal’s estate. If requested, the agent must comply with the request within 60 days or provide a writing or other record substantiating why additional time is needed and comply with the request within an additional 60 days.” (2018).
This is an extensive list that showcases what is required by statute of an agent’s duties in a power of attorney. What is a power of attorney? Hopefully, we have shed some light on powers of attorney.
Reach out to Bret Jones, P.A.
What is a power of attorney? At Bret Jones, P.A., we can discuss powers of attorney with you in detail. No matter what your need may be, we can help you achieve your desired outcome. Don’t hesitate to reach out and speak with us today. We look forward to hearing from you.