Florida’s Unique Power of Attorney Law
No Springing POA in Florida
Florida Power of Attorney
Hey there, I’m Estate Planning attorney Paul Rabalais. Alongside my team, we help people around the country get and keep their estate in order, and in this particular post I am going to describe how the power of attorney law in Florida is different than other states.
What is a Power of Attorney?
So a power of attorney is a document virtually every adult signs when they put a comprehensive legal plan in place for themselves and their family. The primary purpose of the power of attorney is to eliminate the need that your family go through a difficult court and attorney-involved guardianship proceeding if, at some point during the rest of your lifetime, you get to a point where you cannot transact for yourself.
The Springing Power of Attorney
The most unique aspect of the Florida power of attorney law is that Florida law does not permit you to create a springing Power of Attorney. A springing Power of Attorney (POA), generally, is a POA that takes effect only when one or more physicians attest, in some form, that you lack the capacity to manage your property.
You see, sometimes I’ll talk to people who say something like, “You know Paul, if I’m incapacitated through illness or injury in the future, and I’m unable to sign my name to sell a vehicle, handle my accounts, or even sell my home, I would want my adult daughter to be able to do those things for me. But Paul, I’m not sure if I trust my daughter’s husband from influencing my daughter, so I would not want my daughter to have this power to act for me immediately. I only want her to have this power if doctors determine that I’m incapable - and not before then.” Those types of people want a springing POA and not an immediate POA.
However, Florida law states that a POA is ineffective if the POA provides that it is to become effective at a future date OR upon the occurrence of a future event or contingency - like you becoming incapacitated.
Difference Between Durable and Springing
Now, note that this issue is different than the “Durable” issue for a power of attorney. Virtually all powers of attorney in every state are written up so that the Power of Attorney is durable - meaning that the Power of Attorney is not terminated by the principal’s incapacity - the principal being the person who created the Power of Attorney appointing another to be the principal’s agent. This post is not about whether a power of attorney you sign can or should be durable. This is about how, in Florida, you cannot create a Power of Attorney that becomes effective at a date later than the date it is signed, regardless of whether the Power of Attorney is durable or not.
An Alternative Estate Planning Option
Now, if you are in Florida and you would prefer that no one have any authority to transact for you while you are alive and well, then perhaps you should consider creating your revocable living trust, transferring assets to your trust, and then have the trust provisions state that the person that you name as your successor trustee can have no authority to act as trustee unless you are deemed incapacitated. Then, you can sleep easy at night knowing that no one can, while you are healthy, access your trust accounts or sell your house out from under you.
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Thank you and have a great day!