The good news is that powers of attorney (POA) are powerful things. The bad news is that powers of attorney are powerful things. Let me explain.
In 2011 the Legislature passed a bill which made sweeping changes to the POA laws. This bill resulted, in part, from concerns expressed in the financial community about a POA becoming effective in situations where someone is unable to make his or her own decisions. When the POA included a “durable” provision and became effective when the person became incapable of making decisions, the financial community had no way of knowing if that individual had the capability. Thus, Florida’s Legislature passed a provision that powers of attorney could, in fact, remain in place when a person was not able to make his or her own decisions if the POA was written with a durable clause. However, in order to be valid, a power of attorney had to be effective when it was signed. If the POA was not effective at the time of signature, it was deemed invalid.
For example, a POA containing health care decisions could be declared invalid if that POA was signed October 1 or later and includes language in the health provisions that it takes effect when the person becomes incapacitated. Therefore, we recommend that an individual prepare a health care surrogate designation as well. Having said that, we are of the opinion that an invalid POA may be treated as a health care surrogate designation under the advance directives law. There has been no case on this, but courts tend to rule in favor of the individual right to make treatment decisions. A court would likely rule that, even if the document is invalid under the POA law, it is valid under Chapter 765. The best practice is to establish both a power of attorney and designate a health care surrogate so there is no question of validity. Be advised, make them consistent if you do this.
If you have designated an agent for health care decisions under the 2011 law and it becomes effective when signed, you still have the ability to override the decision of the agent. In other words, you are not relinquishing that power. The laws on making health care decisions recognize your autonomy, and you can still make those decisions if you chose. This is another good reason to designate your substitute health care decisionmaker in a health care surrogate designation form.
Under that same bill, POA’s must have specific provisions and give specific rights and responsibilities to the agent who will take control. People often use someone else’s POA as a template for developing their own or buy a form at an office supply store. Be wary of this. If you don’t follow the requirements in the law carefully and specify the rights, the POA could be invalid when you need it. Many POAs drafted under the older law included language such as, “I give the power to do any act that I could do myself.” Think about that language and the power it gives someone. The new law makes you carefully consider what you are willing to delegate.
The combination of these two provisions is a double-edged sword. Your POA must be effective when signed and can have sweeping financial authority. This underscores the need to give the power only to someone you trust and enumerate the powers you are choosing to designate.
The 2011 law also requires that the agent consider what you would want to do. This compels you to communicate with your agent regularly so they understand your expectations.
If you have a POA executed before 2011, look at it with a critical eye. Make sure it still says what you truly want your agent to do. If it does not, consider preparing a new one in compliance with the 2011 changes. We recommend having an attorney, knowledgeable in this area, draft the POA. Money is well spent to have a POA that is not too broad, yet includes what you would need, and meets the technicalities of the law. The time when you need it the most is likely the time when you will not be able to rewrite it if it is not valid. That is a big risk to take and could cost thousands of dollars to get a guardian appointed.