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Legally Speaking: Power of Attorney
power of attorney is a legal document delegating
authority from one person to another. 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 certain specific acts. A power of attorney terminates if the principal becomes
incapacitated, unless it is a special kind of power of
attorney known as a “durable power of attorney.” A
durable power of attorney remains effective even if
a person becomes incapacitated. A durable power of
attorney must contain special wording that provides
the power survives the incapacity of the principal. Most
powers of attorney granted today are durable.
A power of attorney 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
for you or your dependent minors, 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 principal must understand what he or she is
signing at the time the document is signed. 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 do a particular act, the agent should
consult the lawyer who prepared the document or other
legal counsel.
A power of attorney is an important and powerful
legal document, as it is authority for someone to act
in someone else’s legal capacity. It should be drawn by
a lawyer to meet the person’s specific circumstances.
Pre-printed forms may fail to provide the protection
desired. It must be signed by the principal and by two
witnesses to the principal’s signature, and a notary must
acknowledge the principal’s signature for the power
of attorney to be properly executed and valid under
Florida law. There are exceptions for military powers of
attorney and for powers of attorney created under the
laws of another state.
If the power of attorney was lawfully executed and it
has not been revoked, suspended or terminated, third
parties may be forced to honor the document. The third
party is required to give the agent a written explanation
of the refusal to accept the power of attorney within
a reasonable time after it is presented to the third
party. Delay for more than a short period may be
unreasonable. Upon refusal or unreasonable delay,
consult an attorney.
A third party is authorized by Florida law to require
the agent to sign an affidavit (a sworn or an affirmed
written statement), stating that he or she is validly
exercising the authority under the Power of Attorney.
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