Power of attorney in Florida: form, signing and powers

Words used in Florida

In Florida you name an agent for money and property in a power of attorney, and a health care surrogate for medical decisions in a separate written designation. A living will is a separate document about life-prolonging procedures. If an adult cannot manage and has no documents, a court can find the person incapacitated and appoint a guardian, but only if no alternative is enough.

An agent (also called an attorney-in-fact) is the person you choose to act for you. You are the principal.

Money and property

Power of attorney; durable power of attorney (Florida Power of Attorney Act)

The person you choose

Agent (the law also covers an 'attorney in fact')

Health care

Designation of health care surrogate (health care advance directive)

Treatment wishes

Living will (written declaration)

Court-appointed decision-maker

Guardian of the person and/or of the property (plenary or limited); guardian advocate for a person with a developmental disability

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

How to revoke a power of attorney in Florida

Official forms in Florida

Forms published by the state or its courts. You open them on the official site.

Health care directive

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

Living will

• Living Will

Free help in Florida

• Florida Law Help (legal aid directory)
• FloridaHealthFinder (AHCA): Health Care Advance Directives guide and forms
• Ninth Judicial Circuit: Guardianship and Guardian Advocacy

Report abuse or exploitation

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

More for Florida

• Everything about powers of attorney in Florida
• Health care directive
• Guardianship
• Signing checklist
• Revoke a power of attorney
• What is a power of attorney?
• Durable vs springing power of attorney