Power of attorney, health care directive and guardianship in Florida

Financial power of attorney in Florida

Law and official form

Law

Florida Power of Attorney Act (Part II of Chapter 709, Florida Statutes)

Uniform Power of Attorney Act

No

Law: Fla. Stat. § 709.2101 (short title 'Florida Power of Attorney Act')

Signing rules

How to sign

You must sign the power of attorney in front of two witnesses who also sign it, and you must acknowledge it before a notary public. You need both the two witnesses and the notary. Special powers such as gifts or trust changes count only if you sign or initial next to each one.

Who signs

Signed by you. If you are physically unable to sign, the notary can sign your name for you under the notary law.

Law: s. 117.05(14)

Notary

Required

Witnesses

2

Who cannot witness

The statute requires two subscribing witnesses. It does not list who may not witness a power of attorney. If the notary signs or initials the special powers for you because you physically cannot, two disinterested witnesses must watch.

Electronic signing

A power of attorney can be signed electronically and notarized or witnessed online under Florida's notary law. But if you live in Florida and a witness was not physically with you, the power of attorney cannot grant the special powers in 709.2202 (gifts, trusts, beneficiary changes and the like). A business may reject a remotely notarized power of attorney if the electronic journal or record cannot be produced.

Law: Fla. Stat. 709.2102(14), 709.2202(6), 709.2119(3)(d), 709.2120(4)(d)

Law: Fla. Stat. §§ 709.2105(2)-(3), 709.2202(1)-(2)

Durable and springing

Is it durable?

A power of attorney is durable only if it says so, for example: 'This durable power of attorney is not terminated by subsequent incapacity of the principal except as provided in chapter 709, Florida Statutes,' or similar words. A power of attorney that is not durable ends when you become incapacitated.

Law: Fla. Stat. 709.2104; 709.2109(1)(b)

Durable unless it says otherwise?

No: it continues after incapacity only if it says so.

Starting later (springing)

A power of attorney signed on or after October 1, 2011 must take effect when it is signed. A power of attorney that says it starts at a future date or on a future event (such as incapacity) is not effective. Exceptions: springing powers signed before October 1, 2011 (they start when the treating physician signs an affidavit of incapacity) and military deployment-contingent powers of attorney.

Law: Fla. Stat. 709.2108

What an agent can and cannot do

Needs express permission

• Create a trust during your lifetime
• Amend, revoke or end a trust you created, but only if the trust allows your agent to do this
• Make gifts
• Create or change rights of survivorship
• Create or change beneficiary designations
• Waive your right to be a beneficiary of a joint and survivor annuity, including a retirement plan survivor benefit
• Disclaim property and powers of appointment

No power of attorney can

No power of attorney can let the agent perform personal-service contracts for you, make an affidavit about your personal knowledge, vote in a public election for you, sign or revoke your will or codicil, or use powers you hold as a trustee or court-appointed fiduciary. If you are married, the agent cannot mortgage or sell your homestead without your spouse joining.

Law: Fla. Stat. 709.2201(3); 709.2201(2)(b)

Law: 'do all acts I could do' wording grants nothing (§ 709.2201(1))

Agent duties, pay and court review

Agent duties

• Act only within the powers the document grants
• Act in good faith and not against your best interest or your reasonable known expectations
• Try to keep your estate plan in place when that is in your best interest
• Not delegate authority except as the law allows
• Keep a record of all receipts, payments and transactions
• Make an inventory each time they open your safe-deposit box
• Unless the document says otherwise: act loyally for your sole benefit, avoid conflicts of interest, use reasonable care, and cooperate with your health care decision-maker

Agent pay

Unless the document says otherwise, the agent is repaid reasonable expenses and a 'qualified agent' gets reasonable pay. Only a qualified agent can be paid: your spouse, an heir, a Florida financial institution with trust powers, a Florida-licensed lawyer or CPA, or a Florida resident who has never been agent for more than three principals at the same time.

Law: Fla. Stat. 709.2112

Asking a court to review an agent

You, the agent, a guardian or other fiduciary, your health care decision-maker, an interested person acting in good faith for your welfare, a government protective agency, or a business asked to honor the power of attorney can ask a court to construe it, review the agent's conduct, remove the agent or grant other relief. The court awards reasonable attorney fees and costs.

Law: Fla. Stat. 709.2116

Law: Fla. Stat. § 709.2114

When it ends and how to revoke it

It ends when

• You die
• You become incapacitated, if the power of attorney is not durable
• A court finds you totally or partly incapacitated, unless the court lets the agent keep some powers
• You revoke it
• The document says it ends
• Its purpose is accomplished
• The agent dies, becomes incapacitated, resigns or is removed, and no other agent is named
• A case is filed to divorce, annul or legally separate you from the agent-spouse

Divorce ends a spouse's authority

Yes · Divorce rules in Florida (Divorce Law Map)

How to revoke

Revoke it in a later power of attorney or another writing that you sign. Signing a new power of attorney does not by itself cancel an earlier one unless it says so.

Telling others

A revocation is not effective against the agent or a business relying on the power of attorney until they get written notice. Notice can be by first-class mail, personal delivery, fax or other electronic message. Notice to a bank or broker must include your name, address and the last four digits of your taxpayer ID and go to an officer or manager in Florida; it takes effect 5 business days after they receive it. An agent or business that acts in good faith without knowing of the revocation is protected.

Law: Fla. Stat. § 709.2109; Fla. Stat. §§ 709.2110, 709.2121, 709.2109(4), 709.2119(5)

Banks, other states and real estate

Banks and other businesses

A business must accept or reject a power of attorney within a reasonable time; for a bank or broker, 4 business days is presumed reasonable for banking or investment transactions the document expressly covers. It cannot demand its own form, and it must give written reasons for a rejection. It may ask the agent for a sworn affidavit, a certified English translation, a lawyer's opinion (with written reasons) or, for remotely notarized documents, the notary's electronic journal. A business that wrongly rejects can be ordered to accept and must pay damages including attorney fees.

Law: Fla. Stat. 709.2119, 709.2120

Signed in another state

A power of attorney signed in another state is valid in Florida if it met that state's law when signed. A business may ask for a lawyer's opinion, at your expense, before accepting a power of attorney that is valid only for this reason.

Law: Fla. Stat. 709.2106(3)

Real estate

A copy usually has the same effect as the original, but the original may be required to record a document affecting title to real property. The original can be recorded with the clerk of the circuit court for the recording fee.

Law: Fla. Stat. 709.2106(5)-(6)

Health care directive in Florida

The document and its form

Document

Designation of Health Care Surrogate

Official form

Designation of Health Care Surrogate (suggested form, Fla. Stat. 765.203)Published by Florida Agency for Health Care Administration (FloridaHealthFinder)Version: Revised 10/2021

You do not have to use it.

Living will

Living Will

The living will is a separate document.

A living will tells doctors whether you want life-prolonging procedures if you have a terminal condition, an end-stage condition or are in a persistent vegetative state. Sign it in front of two witnesses; at least one must be neither your spouse nor a blood relative. If you cannot sign, one witness signs your name in your presence and at your direction. Tell your doctor you have one.

Living will

Law: Fla. Stat. §§ 765.202, 765.203; Fla. Stat. §§ 765.302, 765.303

Signing rules

How to sign

Sign the designation in front of two adult witnesses, who also sign. A notary is not required. Give your surrogate an exact copy.

Who signs

Signed by you. If you cannot sign, you can direct another person to sign your name in the witnesses' presence.

Notary

Not required

Witnesses

2

Who cannot witness

Two adult witnesses must sign. The person you name as surrogate cannot be a witness. At least one witness must be neither your spouse nor a blood relative.

Law: Fla. Stat. § 765.202(1)-(2)

Who can be your agent and what the agent can do

Who cannot be your agent

Any competent adult can be your surrogate. You can name an alternate surrogate, and a separate surrogate for mental health treatment decisions.

Law: Fla. Stat. 765.101; 765.202(3), (5)

When the agent starts

The surrogate's authority starts when your primary or attending physician finds that you lack capacity (a second physician must agree if the first has doubts) and stops when you regain capacity. You can instead choose to let the surrogate act or receive your health information right away.

Law: Fla. Stat. 765.202(6), 765.204

Decisions an agent cannot make

Unless you expressly give this power in writing, or a court approves it, a surrogate or proxy cannot consent to abortion, sterilization, electroshock therapy, psychosurgery, experimental treatment not approved by a review board, or voluntary admission to a mental health facility, and cannot withhold or withdraw life-prolonging procedures from a pregnant patient before viability.

Law: Fla. Stat. 765.113

Revoking and conflicting documents

Revoking your agent

You can change or revoke a designation at any time while you have capacity: by a signed, dated writing; by destroying it yourself or having someone destroy it in your presence at your direction; by saying so out loud; or by signing a new, materially different directive.

Revoking your instructions

A living will and other advance directives are changed or revoked the same ways.

Telling others

The change or revocation takes effect when it is communicated to your surrogate, health care provider or facility. No one is liable for failing to follow a revocation they did not actually know about.

Divorce ends a spouse's authority

Yes · Divorce rules in Florida (Divorce Law Map)

Conflicting documents

If a health care surrogate designation and a power of attorney conflict, the surrogate designation controls unless the power of attorney was signed later and expressly says otherwise.

Law: Fla. Stat. 709.2109(3)(b)

Law: Fla. Stat. § 765.104

If you have no directive

Who decides without a directive

If you have no directive or your surrogate is not available, a 'proxy' makes health care decisions in this order of priority. A proxy's decision to withhold or withdraw life-prolonging procedures must be supported by clear and convincing evidence of what you would have chosen or of your best interest.

1. Court-appointed guardian (or guardian advocate) authorized to consent to medical treatment
2. Spouse
3. Adult child (a majority of available adult children if more than one)
4. Parent
5. Adult sibling (a majority of available siblings if more than one)
6. Adult relative who has shown special care and concern and kept regular contact
7. Close friend
8. Licensed clinical social worker, or graduate of a court-approved guardianship program, chosen by the provider's bioethics committee

Law: Fla. Stat. § 765.401

Other states, registry and medical orders

Signed in another state

An advance directive signed in another state under that state's law or Florida law is valid in Florida.

Law: Fla. Stat. 765.112

POLST (medical orders)

Do Not Resuscitate Order (DNRO), DH Form 1896 (revised 02/2024), printed on yellow paper; signed by your physician or physician assistant and by you or your surrogate, proxy, guardian or agent with health care authority

Official page

Mental health directive

You can name a separate surrogate to consent to mental health treatment if a court finds you incompetent to consent and appoints a guardian advocate. If you do not, your health care surrogate is presumed to be your choice for mental health decisions.

Law: Fla. Stat. 765.202(5)

Law: Fla. Stat. § 401.45(3); Fla. Admin. Code R. 64J-2.018

Guardianship and conservatorship in Florida

What guardianship or conservatorship is

What it is called

Guardian of the person, guardian of the property, plenary or limited guardian, emergency temporary guardian, preneed guardian, guardian advocate (developmental disabilities)

When a court may appoint one

An incapacitated person is someone a court has found lacks the capacity to manage at least some of their property or to meet at least some essential health and safety needs. The court removes only the rights the person cannot exercise, based on clear and convincing evidence and an examining committee. A guardian may not be appointed if an alternative to guardianship (such as a power of attorney, trust, health care surrogate or supported decisionmaking) will sufficiently address the problems, and the order must be the least restrictive appropriate alternative.

Kinds

• Plenary guardianship
• Limited guardianship
• Emergency temporary guardianship (imminent danger)
• Voluntary guardianship of property for a competent adult who asks for it
• Guardian advocate for a person with a developmental disability (no incapacity finding)

Law: Fla. Stat. §§ 744.102, 744.3201, 744.331, 744.3031, 744.341, 744.3085

Who can ask, which court and your own choice

Who may ask

Any adult may file a petition to determine incapacity. The petition must say whether the person uses supported decisionmaking or other help and why that is not enough.

Court

Circuit court (probate division) in the county where the person lives.

Choosing your own

While competent you can name a preneed guardian in a written declaration signed in front of two witnesses present at the same time, and file it with the clerk of court. It creates a rebuttable presumption that your choice should serve.

Law: Fla. Stat. 744.3045

Effect on a power of attorney

Filing a petition to determine incapacity suspends the power of attorney until the court acts, except when the agent is your parent, spouse, child or grandchild, whose authority is suspended only if a sworn motion is filed. A finding of incapacity ends the power of attorney unless the court lets the agent keep some powers. Health care authority continues unless the court orders otherwise.

Law: Fla. Stat. 709.2109, 744.3203

Cost, fee waiver and forms

Filing fee

Clerk filing fees may not exceed $395 for guardianship of property or plenary guardianship, $230 for guardianship of the person only, and $230 for a petition to determine incompetency, plus a $4 service charge.

Law: Fla. Stat. 28.2401

Fee waiver

You can apply to the clerk of court for civil indigent status to defer court fees.

Steps

Steps

Other options and where to report abuse

Supported decision-making

Supported decisionmaking agreement

Effective July 1, 2024

A supported decisionmaking agreement lets someone you choose get your information (such as health and school records) and help you communicate your own decisions to others. The person cannot sign or act for you. It is not durable.

It is a power of attorney that only lets the agent receive information and help you communicate, so it is signed like a power of attorney: two witnesses and a notary.

Source: Official text

Less restrictive options

• Durable power of attorney: You name an agent for property and money; a court may treat it as an alternative to guardianship.
• Health care surrogate designation: You name someone to make health care decisions if you cannot.
• Supported decisionmaking agreement: A trusted person gets your information and helps you communicate your own decisions.
• Guardian advocate: For an adult with a developmental disability, a court can appoint a guardian advocate without a finding of incapacity.
• Voluntary guardianship: A competent adult who cannot manage property because of age or physical infirmity can ask the court for a guardian of the property.

Report abuse or exploitation

Florida Abuse Hotline (Department of Children and Families, Adult Protective Services) · 1-800-962-2873

Call or text the Eldercare Locator to find your local adult protective services: 1-800-677-1116 · eldercare.acl.gov

Law: Fla. Stat. §§ 709.2201(2)(d), 709.2209

Good to know in Florida

• A financial power of attorney needs both two witnesses and a notary.

  Law: Fla. Stat. 709.2105

• Springing powers of attorney signed on or after October 1, 2011 are not effective; a Florida power of attorney starts when signed.

  Law: Fla. Stat. 709.2108

• Gifts, trust changes and beneficiary changes need your signature or initials next to each power.

  Law: Fla. Stat. 709.2202

• To get a guardianship of an adult in Florida, the guardian must be represented by a lawyer, except for guardian advocacy.

  Law: Probate Rule 5.030

  Source: Ninth Judicial Circuit guide

Changes in 2024–2026

Ch. 2024-242, Laws of Florida, effective July 1, 2024: created supported decisionmaking agreements, let an agent grant one if specifically authorized, and required petitions to determine incapacity to address supported decisionmaking and courts to consider a person's needs and abilities before appointing a guardian advocate. Ch. 2026-154 (eff. July 1, 2026) only conformed a cross-reference in 744.331. No 2024-2026 changes to Chapter 765.

Law: HB 73; Fla. Stat. 709.2209; 709.2201(2)(d); 744.3201; 393.12

Questions about powers of attorney in Florida