Power of Attorney in Lee County

Durable & Non-Durable Powers of Attorney in Florida

A durable power of attorney remains effective if the principal later becomes incapacitated. The principal is the person granting authority to another person, known as the agent. By contrast, a non-durable document ends when the principal loses legal capacity.

When signing, the principal must have the capacity to understand the document. Florida generally requires:

• The principal’s signature
• The signatures of two subscribing witnesses in the principal’s presence
• The principal’s acknowledgment before a notary public

Limited statutory exceptions may apply. Florida Statutes section 709.2104 also requires language stating that the authority continues despite the principal’s later incapacity, or similar words showing the same intent. Florida law requires powers of attorney signed on or after October 1, 2011, to meet the execution requirements set out in Florida Statutes section 709.2105.

When an Agent’s Authority Takes Effect

A properly executed Florida power of attorney generally becomes effective immediately. For documents executed after October 1, 2011, Florida generally doesn’t permit a springing power of attorney, meaning one designed to take effect only after a future event such as incapacity.

An agent may exercise only the authority specifically granted in the document. Broad language allowing the agent to perform every act the principal could perform doesn’t independently grant each specific power. Careful drafting identifies the transactions and decisions the agent is authorized to handle.

Revocation, Termination & Guardianship

A principal can revoke a power of attorney while the principal has capacity. Authority can also end when the document’s stated purpose is accomplished, when the document provides for termination, or when the named agent becomes unavailable and no successor has been designated.

The agent’s authority ends when the principal dies. Responsibility for post-death estate matters then passes to the personal representative.

A valid durable power of attorney may provide a less restrictive alternative to guardianship in appropriate circumstances because an authorized agent can act without ongoing court involvement. It doesn’t prevent someone from seeking guardianship. If judicial proceedings begin to determine incapacity or appoint a guardian, the agent’s authority is generally suspended until the petition is dismissed or withdrawn, or the court authorizes the agent to act.

Presenting the Document to Florida Institutions

Banks, financial institutions, and government agencies may request additional information or an opinion of counsel before accepting a power of attorney. Under specified circumstances, Florida law requires a third party to accept or reject the document within a reasonable time. Legal review can address questions about validity, execution, and the scope of the agent’s authority.

The document doesn’t need to be filed with a government office simply to be valid. However, an original may be needed for real estate recording with the clerk of the circuit court when it affects title to real property.