POWER OF ATTORNEY

IN FAMILY AND ELDER LAW

A power of attorney is a legal document delegating authority from one person to another (an “agent”). This is a common practice in elder law and estate cases, and can be found in all facets of law practice. In the document, the maker of the power of attorney (the “principal”) grants the right to act on the maker’s behalf as that person’s agent. What authority is granted depends on the specific language of the power of attorney. A person giving a power of attorney may make it very broad or may limit it to specific acts. If you have questions about a power or attorney or need help creating yours, contact the family and elder law specialists at The Wheeler Firm.

The value of the document is that it authorizes another person to act for you when you are indisposed or incapacitated due to illness. In more extreme circumstances, a power of attorney can help avoid the need for a guardianship proceeding if you need another person to manage your affairs during a period of incapacitation.

Some individuals have concerns about giving up their rights to their agent through the power of attorney. However, although you are designating a person to act on your behalf, you are not giving up the right to act on your own. You retain all rights and responsibilities, even after signing the document.

Family Law
Elder Law in Okaloosa and Walton County Florida

How a Power of Attorney is Used

The power of attorney document is effective immediately upon execution. In estate and elder law, It may be used to give another the right to sell a car, home or other property. A power of attorney might be used to allow another to access bank accounts, sign a contract, make health care decisions, handle financial transactions, or sign legal documents for the principal. A power of attorney may give others the right to do almost any legal act that the maker of the power of attorney could do, including the ability to create trusts and make gifts.

The agent should always add “as agent for” the principal when signing documents in an official capacity. If the agent signs only his or her own name, the agent may be held personally responsible for whatever was signed. As long as the signature clearly indicates that the document is being signed in a representative capacity and not personally, the agent is protected. Ready to speak to an elder law attorney in Florida? Contact The Wheeler Firm today!

TYPES OF POWERS OF ATTORNEY

A power of attorney can vary in scope and form, depending on your needs.

Limited Power of Attorney:

A “limited power of attorney” gives the agent authority to conduct a specific act. For example, a person might use a limited power of attorney to sell a home in another state by delegating authority to another person, allowing that person to handle the transaction locally. Such a power could be “limited” to selling the home or to other specified acts.

General Power of Attorney:

A “general power of attorney” typically gives the agent very broad powers to perform any legal act on behalf of the principal. A specific list of the types of activities the agent is authorized to perform must be included in the document.

Durable Power of Attorney:

Normally, a power of attorney terminates if the principal becomes incapacitated. However if it is designated as a “durable power of attorney,” it will remain effective even if a person becomes incapacitated. A durable power of attorney must contain special wording that allows the power to survive the incapacity of the principal. In regards to family and elder law, most powers of attorney granted today are durable, as individuals plan for unforeseen illness or incapacity. Note, however, that the principal must be of sound mind and understand what he or she is signing at the time the power of attorney is signed. In other words, the principal must understand the effect of a power of attorney, to whom the power of attorney is being given and what property may be affected by the power of attorney.

POWERS AND DUTIES OF AGENT

What activities are permitted by an agent?

An agent may perform only those acts specified in the power of attorney and any acts reasonably necessary to give effect to the specified acts. If an agent is unsure about authorization to engage in a particular act, the agent should consult an experienced family and elder law attorney to understand the scope of their authorization to act on behalf of the principal.

Are there limits on what the agent may do?

There are a few actions that an agent is prohibited from doing even if the power of attorney states that the action is authorized. An agent cannot practice law unless the agent is a licensed member of the Florida Bar, may not sign a document stating that the principal has knowledge of certain facts, vote for the principal, and may not create or revoke a will for the principal.

What are the responsibilities of an agent?

While the power of attorney gives the agent authority to act on behalf of the principal, an agent is not required to serve. An agent may have a moral or other obligation to take on the responsibilities associated with the power of attorney, but the power of attorney does not create an obligation to assume the duties. However, once an agent takes on a responsibility, there is a duty to act prudently. (See “Financial Management and the Liability of an Agent.”)

Is there a certain code of conduct for agents?

Yes. Agents must meet certain standards of care when performing their duties. An agent is looked upon as a “fiduciary” under the law. A fiduciary relationship is one of trust, and if the agent violates this trust, the law may punish the agent both civilly (by ordering the payment of restitution and punishment money) and criminally (probation or jail).

TERMINATION OF THE POWER OF ATTORNEY

When does a power of attorney terminate?
The authority of any agent under a power of attorney automatically ends when one of the following things happens:

  • The principal dies.
  • The principal revokes the power of attorney.
  • A court determines that the principal is totally or partially incapacitated and does not specifically provide that the power of attorney is to remain in force.
  • The purpose of the power of attorney is completed.
  • The term of the power of attorney expires.

In any of these instances, the power of attorney is terminated. If, after having knowledge of any of these events, a person continues to act as an agent, he or she is acting without authority.

What is the procedure for a principal to revoke a power of attorney?
The revocation must be in writing and may be done by a subsequent power of attorney. Notice should be served to the agent and any other party who might rely on the power. The notice should be served by any form of mail that requires a signed receipt, or by certain approved methods of personal delivery. Special rules exist for serving notice of revocation on banks and other financial institutions. Consult with an experienced family and elder law attorney to be sure proper procedures are followed.

At The Wheeler Law Firm, we can help you gain security and confidence in your future by drafting a power of attorney for you, and helping you understand how to best utilize the document for your benefit. Contact us to schedule a consultation with Florida’s premier family and elder law firm, or give us a call at (850) 613-6923.

POWER OF ATTORNEY

A power of attorney is a legal document delegating authority from one person to another (an “agent”). This is a common practice in elder law and estate cases, and can be found in all facets of law practice. In the document, the maker of the power of attorney (the “principal”) grants the right to act on the maker’s behalf as that person’s agent. What authority is granted depends on the specific language of the power of attorney. A person giving a power of attorney may make it very broad or may limit it to specific acts. If you have questions about a power or attorney or need help creating yours, contact the family and elder law specialists at The Wheeler Firm.

The value of the document is that it authorizes another person to act for you when you are indisposed or incapacitated due to illness. In more extreme circumstances, a power of attorney can help avoid the need for a guardianship proceeding if you need another person to manage your affairs during a period of incapacitation.

Some individuals have concerns about giving up their rights to their agent through the power of attorney. However, although you are designating a person to act on your behalf, you are not giving up the right to act on your own. You retain all rights and responsibilities, even after signing the document.

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