Florida Durable Powers of Attorney: No "Springing" Powers Allowed
- Aug 27, 2017
- 4 min read
Updated: Jul 7
Many people are surprised to learn that Florida no longer allows "springing" Durable Powers of Attorney.
Years ago, a Power of Attorney could be drafted so that it became effective only after a future event occurred—most commonly when the person signing the document became incapacitated.
Today, that is no longer permitted under Florida law.
What Is a Springing Power of Attorney?
A springing Power of Attorney is one that "springs" into effect only after a specified event occurs.
Common triggering events included:
the principal becoming incapacitated;
certification by one or more physicians;
the principal leaving the country; or
another future event identified in the document.
Florida law no longer recognizes these types of delayed-effective Powers of Attorney.
When Does a Florida Durable Power of Attorney Become Effective?
In most cases, a Florida Durable Power of Attorney becomes effective immediately upon proper execution.
Once signed before the required witnesses and a notary public, your agent generally has the legal authority to act on your behalf—even if you remain perfectly healthy and fully capable of managing your own affairs.
For that reason, choosing your agent is one of the most important decisions in your estate plan.
Only appoint someone you trust completely to act in your best interests.
How Can I Prevent My Agent From Using It Too Soon?
Many clients worry that giving someone a Durable Power of Attorney means giving up control.
Fortunately, that is not the case.
You remain free to manage your own finances for as long as you are able, and you may revoke the Power of Attorney at any time while you have legal capacity.
If you are concerned about premature use of the document, discuss practical safeguards with your attorney. Depending on your circumstances, those safeguards may include limiting who has access to the original document or establishing clear instructions regarding when it should be used.
Florida Also Requires Specific Powers
Florida law also eliminated the broad "catch-all" provisions that once appeared in many Powers of Attorney.
Older documents often included language authorizing an agent to do:
"all other acts, deeds, matters, and things whatsoever..."
That type of blanket authority is no longer sufficient for many important powers.
Instead, a Florida Durable Power of Attorney should specifically identify the authority you are granting to your agent.
For example, the document may expressly authorize your agent to:
conduct banking transactions;
manage investments;
buy or sell real estate;
operate a business;
deal with governmental agencies;
access digital assets; and
perform numerous other specifically described financial transactions.
The more carefully drafted the document, the more likely financial institutions and third parties will honor it when needed.
Is Your Durable Power of Attorney Up to Date?
If your Durable Power of Attorney was prepared many years ago, it may not fully comply with Florida's current statutory requirements or adequately address your present needs.
Reviewing your estate planning documents periodically helps ensure they continue to protect you and your family.
If you have questions about your existing Durable Power of Attorney or would like to prepare a new one, an experienced Florida estate planning attorney can help you create a document that complies with current Florida law and reflects your wishes.
Common Mistakes with Florida Durable Powers of Attorney
A Durable Power of Attorney is one of the most powerful estate planning documents you can sign. Unfortunately, many people make mistakes that can cause significant problems when the document is finally needed.
Waiting Until Incapacity
One of the most common mistakes is waiting too long.
A Durable Power of Attorney must be signed while you still have the legal capacity to understand the nature and effect of the document. Once a person loses capacity due to dementia, Alzheimer's disease, stroke, or another illness, it is generally too late to create a valid Power of Attorney. In many cases, the family must then seek a court-appointed guardian—a process that is often expensive, time-consuming, and emotionally difficult.
Choosing the Wrong Agent
Your agent should be someone you trust completely.
The person you appoint may have the authority to access bank accounts, pay bills, manage investments, sell real estate, and conduct many other important financial transactions on your behalf. While family members are often appropriate choices, trustworthiness, financial responsibility, and sound judgment should be more important than birth order or family expectations.
Assuming Every Bank Will Automatically Accept It
Although Florida law generally requires financial institutions to honor properly executed Durable Powers of Attorney, banks and brokerage firms may request additional documentation or require time to review the document before accepting it.
Having an experienced attorney prepare a comprehensive, well-drafted Power of Attorney can reduce delays and increase the likelihood that financial institutions will honor it when needed.
Failing to Update an Old Power of Attorney
Estate planning documents should be reviewed periodically.
A Power of Attorney prepared many years ago may no longer reflect your wishes, your financial circumstances, or your relationships. Changes such as marriage, divorce, the death of a named agent, relocation, or significant changes in Florida law are all good reasons to review your documents.
Confusing a Durable Power of Attorney with a Health Care Directive
A Durable Power of Attorney primarily authorizes someone to handle financial and legal matters.
It generally does not authorize someone to make medical decisions for you. In Florida, those decisions are typically addressed through a Designation of Health Care Surrogate and a Living Will. A comprehensive estate plan should include all of these documents so that both your financial affairs and healthcare decisions can be managed if you become incapacitated.
Keeping the Document Hidden
Some people sign a Durable Power of Attorney and place it in a safe deposit box or other location where no one can access it.
A Power of Attorney cannot help your family if they cannot locate it when an emergency arises. Make sure your agent knows where the original document is kept and how to obtain it if it becomes necessary.
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