A durable power of attorney lets a person you choose help with financial and property matters under the authority you grant. It can provide continuity if you become unable to act and is an important part of a coordinated incapacity plan. Spiro Verras has practiced law since 1993 and teaches Florida estate planning to other lawyers and paralegals for the National Business Institute.
Understand when authority begins
A newly prepared Florida power of attorney generally must be exercisable when signed rather than first becoming effective upon a future incapacity (§ 709.2108). Statutory exceptions apply, including rules for certain older and military powers. “Durable” means that the required wording allows the authority to continue after a later incapacity (§ 709.2104). That makes the choice of agent and the scope of the powers especially important.
Choose someone you trust to use the authority responsibly, and name an appropriate successor. Storing the original safely is useful, but generally a copy has the same legal effect, subject to applicable recording and other requirements (§ 709.2106). The document’s safeguards should therefore focus on the agent, the powers, and any appropriate oversight.
Choose the powers with care
Florida generally requires execution before two witnesses and acknowledgment before a notary, with statutory provisions for particular circumstances (§ 709.2105). Certain powers require separate signatures or initials under § 709.2202, including specified trust actions, gifts, changes to survivorship or beneficiary rights, and disclaimers. Gift authority also has limits unless the document provides otherwise. These provisions should be tailored to the purposes you want the agent to carry out.
Spiro reviews those choices with you. Authority to fund a trust, handle a retirement account, change a beneficiary, or make a gift can have significant consequences for your finances, benefits, and estate plan. The document should grant the powers you intend with appropriate limits and coordination.
Your agent is a fiduciary with real duties
An agent is a fiduciary and must follow the authority granted and the duties imposed by Florida law, including good faith, appropriate loyalty, recordkeeping, and consideration of the known estate plan (§ 709.2114). Courts can review conduct and order appropriate relief. Co-agents may generally act independently unless the document provides otherwise, so the choice between co-agents and a single agent with successors should be deliberate.
Make the document practical to use
Florida law sets standards for accepting or rejecting a power of attorney and recognizes certain permitted requests for supporting information (§§ 709.2119, 709.2120). Clear authority and appropriate records help an agent respond to a bank, title company, or other institution. Spiro considers the assets and transactions involved when drafting, including retirement accounts, real estate, business interests, digital assets, and trust funding.
Coordinate the wider incapacity plan
A power of attorney, together with a trust and health care directives, can help maintain continuity in financial and personal decision-making. It cannot resolve every circumstance. A petition to determine incapacity can affect the agent’s authority, but § 709.2109 includes an exception for an agent who is the principal’s parent, spouse, child, or grandchild unless the required verified motion is also filed. Court orders and the particular facts matter. Our incapacity plan brings these arrangements together, with assistance from appropriate additional counsel if needed.
Keep its role clear and current
The authority ends at death, when the personal representative, trustee, or other legally authorized person handles the relevant property. Medical decision-making is addressed through your advance directives. A financial power of attorney does not itself avoid probate. Review it after significant changes in health, family, assets, or residence, and when an agent can no longer serve. A divorce filing can also end a spouse-agent’s authority unless the document provides otherwise (§ 709.2109).
Contact our office to arrange a consultation with Spiro about estate planning, trusts, or probate. Meet in Palm Harbor, in Tampa or St. Petersburg by appointment, or by Zoom or teleconference.