Powers of Attorney -Frequently Asked Questions

What is a power of attorney?

Simply put, a Power of Attorney is “a writing that grants authority to an agent to act in the place of a principal.” § 709.2102(9), Fla. Stat.. Thus, it “creates the relationship of principal and agent between the one who gives the power and the one who holds it.” Kotsch v. Kotsch, 608 So.2d 879, 880 (Fla. 2d DCA 1992). The agent acts on behalf of the principal under the express authority granted in the Power of Attorney. 

Is an agent allowed to make a gift using a Power of Attorney?

Occasionally the question comes up whether a gift can be made using a power of attorney.  Here’s the answer- under Florida law an agent cannot make a gift of his principal’s property to himself or others unless it is expressly authorized in the power of attorney.

And What powers does an agent have under a power of attorney?

A power of attorney can have “catch-all” statement describing broadly the authority granted to the attorney in fact, it may grant specific powers, or it may do both; if the power of attorney includes both, the nature of listed specific powers may clarify whether the broader catch-all provision includes a particular, but not specifically mentioned, power.  It is important to know that Powers of attorney are strictly construed, and they will be held to grant only those powers that are specified and will be closely examined in order to ascertain the intent of the principal.  For example, the court in Kotsch v. Kotsch,608 So.2d 879, 880 (Fla. 2d DCA 1992) held that a power of attorney that specifically granted authority to a son to provide for his father’s lifetime maintenance and care did not authorize the son to transfer his dad’s assets into a trust to protect them from his dad’s wife).

But What type of relationship does a power of attorney create?

A “power of attorney” creates a principal and agent the relationship of between the one who gives the power (the principal) and the one who holds it (the agent). 

Don’t miss our upcoming blog where we will discuss medical power of attorneys.  Contact Broward power of attorney lawyer Andrew Pascale to discuss your case today.  This blog does not constitute legal advice and is for illustrative purposes only.