November 10, 2015

What is a Power of Attorney?

By Revis, Hervas & Goldberg P.A.

A Power of Attorney is a powerful instrument. It empowers an “agent” or “agents” to serve as an attorney-in-fact on behalf of the “principal”. Under Florida law, any person 18 years of age or older, or a financial institution having trust powers, can serve as attorney-in-fact. The power of attorney must be in writing, and must be executed with the same formalities required to transfer real property in Florida: namely, it must be executed in the presence two witnesses and be notarized.

A power of attorney may be general (broad) in scope, or it may be very specific. Common examples of specific powers of attorney include instruments limited to authorizing the agent to sell a particular piece of real estate, to deal with a particular bank account, or to act with respect to a minor child. Florida law prohibits certain delegations of authority by power of attorney, such as voting in a public election or making affidavits as to the personal knowledge of the principal.

Normally, a power of attorney may be revoked, but a power of attorney coupled with an interest cannot be revoked by the principal. The agent under a power of attorney loses all authority under the instrument when the principal dies or is adjudicated to be incapacitated. However, a Durable Power of Attorney includes language that allows the authority conferred to continue, notwithstanding the principal’s disability or incapacity.

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