An unexpected event takes place, and to a loved one. In these moments, families discover a harsh reality: Understanding “What is a durable power of attorney” becomes urgent when a crisis hits. But the time to create one is before incapacity occurs.
Someone needs to pay bills, access bank accounts, and make critical financial decisions, but no one has legal authority to act.
Know more about how a durable power of attorney prevents families from facing expensive guardianship proceedings while loved ones need immediate help with decisions on their behalf.
The Basics of Powers of Attorney in Florida
What Powers of Attorney Actually Do
A power of attorney is a legal document delegating authority from one person to another. The person creating the document is called the principal. The person receiving authority is the agent or attorney-in-fact.
This legal document is used to allow another person to handle tasks the principal either cannot or prefers not to manage personally.
The Purposes of a POA
Powers of attorney serve different purposes depending on how the principal structures the document. Some grant broad authority over all financial affairs. Others limit the agent to specific transactions like selling a house or managing investments during a temporary absence.
Who Can Create a Power of Attorney in Florida
Florida law sets clear requirements for creating valid powers of attorney, which are:
- The principal must be at least 18 years of age or an emancipated minor
- Mental capacity is required at the time of signing
- The person understands what rights they are granting
- The document must be in writing and signed by the principal
- Two witnesses are required to observe the signing
- Both witnesses must also sign the document.
Having the document notarized prevents problems later when the agent needs to use it.
What Makes a Durable Power of Attorney Different
Durable vs Non-Durable Powers
The word “durable” determines whether a power of attorney survives the principal’s incapacity. A standard, non-durable power of attorney automatically ends if the principal becomes incapacitated.
This creates problems for families who need the document to work during medical crises.
A Florida durable power of attorney contains specific language stating it remains effective even if the principal is totally or partially incapacitated.
Florida Statutes Section 709.2104
According to this section of the Florida Statutes, a power of attorney executed in Florida is durable unless it expressly provides that it terminates upon the incapacity of the principal.
The statute states that a power of attorney is effective immediately unless the principal provides otherwise in the document.
Scope of Authority: Limited vs General
Powers of attorney vary in what authority they grant:
Limited Power of Attorney
- Restricts the agent to specific tasks or a defined timeframe
- Expires after completing the designated transaction
- Common for real estate closings during travel or temporary situations
General Power of Attorney
- Grants broad authority over financial and legal matters
- Allows the agent to manage bank accounts, pay bills, and handle taxes
- Authorizes business transactions on behalf of the principal
The powers granted in the document control what the agent can actually do. Clear language prevents confusion when the agent needs to act.
How DPOAs Differ from Healthcare Documents
Florida residents sometimes confuse durable powers of attorney with health care surrogate designations. These documents serve distinct purposes:
| Durable Power of Attorney | Health Care Surrogate |
| Controls financial and legal matters | Makes medical treatment decisions only |
| Manages bank accounts, property, and business | Communicates with doctors about care |
| Requires notarization plus two witnesses | Requires two witnesses |
| Survives incapacity with a durability clause | Activates when the patient cannot communicate |
Complete estate planning includes both documents working together. The health care surrogate covers medical situations, while the DPOA handles everything else.
How a Durable Power of Attorney Works in Florida
When the Document Becomes Active
Florida powers of attorney activate in one of two ways:
- A power of attorney is effective when executed unless the principal provides otherwise in the document
- Most Florida DPOAs become effective immediately upon signing
The principal can still handle their own affairs, but the agent also has authority to act if needed.
“Springing” Powers Explained
This immediate effectiveness gives flexibility without requiring proof of incapacity. Some people prefer “springing” powers that only activate when specific conditions occur, typically when the principal becomes incapacitated.
However, springing powers create practical problems. Financial institutions often demand proof that the triggering condition has occurred before accepting the document. Obtaining this proof can delay urgent transactions when time matters.
What Authority the Agent Receives
The authority of the agent depends entirely on what powers the principal grants. Florida Statutes Section 709.2201 describes powers that may be included in a Florida power of attorney:
- Real property transactions
- Tangible personal property transactions
- Stock and bond transactions
- Banking and other financial institution transactions
- Business operating transactions
- Insurance and annuity transactions
- Estate, trust, and beneficiary transactions
- Claims and litigation
- Personal and family maintenance
- Benefits from governmental programs
- Retirement plan transactions
- Tax matters
Each power listed in the statute requires the principal to specifically grant it in the power of attorney document. Florida law protects principals by not assuming broad authority unless clearly stated.
Financial institutions must honor valid Florida powers of attorney unless they have specific legal grounds for refusal.
Transactions Requiring Explicit Authorization:
Some actions need special language in the document under Florida Statutes Section 709.2202:
- Creating, amending, or revoking trusts
- Making gifts beyond nominal amounts
- Changing beneficiary designations
- Creating or changing rights of survivorship
- Delegating authority to another person
The Agent’s Legal Obligations
The agent must act in accordance with the principal’s wishes and in the principal’s best interest.
This fiduciary duty means putting the principal’s needs above personal interests. The agent must:
- Keep accurate records of all transactions made using the power of attorney
- Maintain separate accounts and detailed documentation of every transaction
Florida Statutes Section 709.2114 establishes specific duties:
- Act loyally for the principal’s benefit
- Avoid conflicts of interest between agent and principal
- Act with care, competence, and diligence
- Keep records of all receipts, disbursements, and transactions
- Keep the principal’s property separate from the agent’s property
Furthermore, the agent’s authority ends at the death of the principal. After that point, the executor or personal representative named in the will takes over managing the estate through probate proceedings.
Creating a Valid Florida Durable Power of Attorney
Florida’s Specific Requirements
Florida statutes establish clear rules for creating enforceable powers of attorney. Following these requirements ensures the document will work when needed.
The document must meet specific execution requirements:
- Must be in writing
- Signed by the principal in the presence of two subscribing witnesses
- Both witnesses must sign the document
- One witness must be either a notary public or an attorney licensed to practice in Florida
- The principal’s signature must be acknowledged before a notary public
For a durable power of attorney executed after October 1, 2011, Florida law presumes durability unless the document states otherwise.
Essential Elements to Include
Creating an effective durable power of attorney requires several key decisions:
Selecting Your Agent
- Choose someone trustworthy and financially responsible
- Verify they’re willing to serve before naming them
- Name one or more successor agents as backups
Defining Powers Granted
The Florida Statutes provide a list of potential powers the principal can grant:
- Authority over real estate transactions
- Access to banking accounts and safe deposit boxes
- Power to manage investments and securities
- Ability to handle tax matters and filings
- Authority to manage business interests
- Power to apply for government benefits
- Ability to make decisions about insurance policies
Additional Provisions to Consider
- Compensation arrangements for agents handling complex affairs
- Accounting requirements for other family members
- Investment philosophy and risk tolerance guidance
- Specific limitations on agent authority
The document should specify exactly what authority the agent receives.
Common Mistakes That Create Problems
Using Outdated Forms
Many Florida residents use power of attorney forms that don’t comply with current law. Florida substantially revised its power of attorney statute effective October 1, 2011.
Skipping the Agent Conversation
Failing to discuss responsibilities with the chosen agent creates problems later. The agent might not understand what the role involves or may not want the responsibility when the time comes.
Having this conversation before signing the document prevents confusion.
Not Registering with Financial Institutions
Some people execute a power of attorney but never provide copies to their bank or other financial institutions. When the agent later needs to use it, the bank may refuse to honor an unfamiliar document or require extensive verification.
Schedule appointments with banks and investment firms to establish the document in their systems before it’s needed.
When Your Durable Power of Attorney Ends
Automatic Termination Events
A durable power of attorney doesn’t last indefinitely. Florida law specifies when a power of attorney terminates.
What happens during the death of the principal:
- Immediately ends all powers granted to the agent
At that point, authority shifts to the personal representative named in the principal’s will or appointed by the probate court.
Events That Terminate a Power of Attorney:
- The principal dies
- The principal revokes the power of attorney
- The power of attorney provides that it terminates
- The purpose of the power of attorney is accomplished
- The principal revokes the agent’s authority
Factors considered in the process:
- If the principal revokes the power of attorney while still mentally competent:
- The document no longer has effect
- Revocation must be in writing and communicated to the agent and any third parties who have copies
- If a court appoints a guardian for the principal:
- This may terminate or limit the agent’s authority, depending on the guardianship order
The court determines what authority the guardian receives and whether any powers of attorney remain valid under Florida Statutes Chapter 744.
The Revocation Process
Revoking a power of attorney requires the principal to still have mental capacity. Someone who has become incapacitated cannot revoke their own power of attorney under Florida law.
Steps to Properly Revoke a DPOA:
- Create a written revocation document stating that the prior power of attorney no longer has effect
- Sign, witness, and notarize the revocation following the same formalities as the original document
- Notify the agent in writing that their authority has been revoked
- Inform all third parties who received copies of the original document
Providing written notice creates a clear record and prevents the agent from continuing to act. Any third parties who received copies of the original power of attorney should receive notice of revocation.
This includes:
- Banks
- Brokerage firms
- Insurance companies
- Anyone else the agent might contact
Creating a new power of attorney automatically revokes any prior inconsistent powers of attorney executed by the principal.
Getting Help with Your Florida Durable Power of Attorney
Generic online forms rarely provide the customization most situations require. Florida’s specific requirements demand careful attention to ensure the document will be honored when used.
For this reason, a law attorney familiar with Florida’s power of attorney statutes can structure the document to address individual circumstances.
Berg Bryant Elder Law Group assists Northeast Florida families with creating durable powers of attorney and comprehensive estate plans.
Experienced attorneys in this specific legal process guide clients through the process of selecting appropriate agents, defining powers granted, and ensuring documents meet Florida’s legal requirements.