Did you know a Florida durable power of attorney is an estate planning tool that grants authority to a named agent to act in the place of the person who is granting this power of attorney?  The term “durable” means, that with respect to a Florida power of attorney, it is not terminated by the principal’s incapacity. The naming of the agent in a durable power of attorney means that person is granted the authority to act for a principal under this power of attorney, whether he or she is titled as an agent, attorney-in-fact, or otherwise.  

Often, we find that a spouse or an adult child is named by the person who is signing the Florida durable power of attorney to be his or her agent. The Florida statutes require that the agent must be a natural person who is 18 years of age or older. It may also be a financial institution that has trust powers, has a place of business in this state, and is authorized to conduct trust business in this state. 

A principal may designate one or more successor agents to act if an agent resigns, dies, becomes incapacitated, is not qualified to serve, or declines to serve. Unless the power of attorney otherwise provides, a successor agent has the same authority as that granted to the original agent. He or she may not act, however, until one of the following occur:

  • The predecessor agent resigns, 
  • The predecessor agent dies,
  • The predecessor agent becomes incapacitated, 
  • The predecessor agent is no longer qualified to serve, or 
  • The predecessor agent declines to serve. 

The Florida resident creating a durable power of attorney may designate two or more persons to act as co-agents, but we recommend you discuss this choice with your estate planning attorney first. You will want to decide how co-agents will need to work together. For example, unless the Florida durable power of attorney otherwise provides, each co-agent may exercise his or her authority independently.

When selecting an agent, it is important to know that this person has training in or a background in understanding what you need. This is an important role, and you need to be able to trust that your chosen primary, secondary, or even tertiary, agents can act as you would. For example, if your assets consist primarily of a business, it is advisable that your agents know how to manage a similar business.  Likewise, if the assets of the principal consist of real estate rentals, the agents should have the time necessary to manage the real property.

We know this article may raise more questions than it answers. Choosing the right decision maker for you is a crucial decision and one that should not be undertaken lightly. We encourage you not to wait but to discuss this with your Florida estate planning attorney. You may contact our law office at any time to schedule a meeting now, or any time in the future.