A durable power of attorney lets a person you choose, your agent, manage your property and finances when you cannot. Of all the documents in an estate plan, it is the one that most often keeps a family out of guardianship court. It is also the one most often done badly. Spiro Verras has practiced law since 1993 and teaches Florida estate planning to other lawyers and paralegals for the National Business Institute.
A Florida power of attorney is effective the moment you sign it
Florida does not permit a power that takes effect only when a doctor says you are incapacitated. Under Fla. Stat. § 709.2108, a power of attorney signed on or after October 1, 2011 is exercisable when it is signed, and one conditioned on your later incapacity is ineffective. A “durable” power is one that says, in the words the statute requires, that it is not terminated by your subsequent incapacity (§ 709.2104).
Because there is no springing power, the safeguard is the person. We can hold the signed original in our safe until it is needed, but a photocopy has the same legal effect as the original (§ 709.2106), so holding paper is a courtesy, not a control. Choose an agent you would trust with your checkbook now, and name at least one successor.
Two witnesses, a notary, and separate initials for the powers that matter most
You sign before two witnesses and a notary (§ 709.2105), and the agent must be an adult or a Florida financial institution with trust powers. Then there is a second layer. Section 709.2202 lists powers an agent has only if you separately sign or initial each one: creating a trust; amending, revoking, or terminating a trust you created; making gifts; creating or changing rights of survivorship; creating or changing a beneficiary designation; waiving a survivor benefit under a joint and survivor annuity or retirement plan; and disclaiming property. Even with the gift power initialed, the agent may give no more per person each year than the federal annual gift exclusion unless the document expressly says otherwise.
Spiro Verras goes through each of these with you. Whether your agent should be able to move your house into your trust, change the beneficiary on your IRA, or make the large gifts that Medicaid planning sometimes requires is a decision, not a default.
Your agent is a fiduciary with real duties
An agent must act only within the authority granted, in good faith, loyally and for your sole benefit, avoiding conflicts of interest, keeping a record of every transaction, and preserving your estate plan as far as they know it (§ 709.2114), and a court may review the agent’s conduct and compel an accounting (§ 709.2116). Co-agents may each act alone unless the document says otherwise (§ 709.2111); Spiro Verras usually recommends one agent at a time with successors rather than two who must agree, because the point is that someone can act.
Banks balk, and the statute answers them
Florida has addressed the bank that refuses a power of attorney. A third party must accept or reject a power within a reasonable time, must put a rejection in writing with its reasons, and may not insist on its own form (§ 709.2120); a refusal without reasonable cause can be compelled by a court, with attorney’s fees. The bank may ask your agent for a sworn affidavit that the power is still in force (§ 709.2119), which Spiro Verras prepares in advance. Even so, he drafts for the compliance officer who will read the document: The power spells out authority over accounts, retirement accounts, real estate, insurance, taxes, business interests, digital assets, and the funding of your trust, in terms an institution recognizes.
It is the document that keeps a family out of guardianship court
Without a power of attorney, the only route to authority over the property of a person who has lost capacity is a petition in circuit court to declare them incapacitated and appoint a guardian: an examining committee, a court-appointed lawyer, a hearing, a bond, and annual accountings for life, all paid from the person’s own assets. Florida requires the court to consider less restrictive alternatives first, and a complete durable power of attorney is the first of them. One wrinkle is worth knowing: Once someone files a guardianship petition, an existing power of attorney is suspended until the court rules (§ 709.2109), so the goal is a power so complete that no one needs to file. Verras Law does not take new guardianship cases. This document, with the rest of the incapacity plan, is how Spiro Verras prevents them. When it is signed, the person you chose will be able to act for you, at the bank and at the title company, on the day it matters.
Its limits are as important as its powers
A power of attorney ends at your death (§ 709.2109). Your agent cannot distribute your estate; that is the personal representative’s job, or the successor trustee’s. It does not cover medical decisions, which belong to the designation of health care surrogate among your advance directives. It does not avoid probate. You may revoke it at any time while you have capacity, and if your agent is your spouse, their authority ends when either of you files for divorce unless the document says otherwise. A power that is years old may still be valid, but institutions treat it with more suspicion each year, which is one reason Spiro Verras reviews these documents with clients periodically.
The next step is the questionnaire, followed by an hour with Spiro Verras in Palm Harbor, or by appointment in Tampa or St. Petersburg.