The sad fact of the matter is that life is fragile, and at any moment we can become incapacitated. Therefore, it is important to create a plan for this occasion as a part of the estate planning process, and name someone as your power of attorney. This way, you will have designated a trusted individual to handle your affairs in the event that your health declines.
What happens, however, if the person you have named as your power of attorney abuses that power or acts according to their own interests instead of carrying out yours? Is there anything your loved ones can do to overrule these actions?
In this blog, we’ll cover the following.
- What is a power of attorney?
- What types of power of attorney are there in Florida?
- Who can create a power of attorney?
- Who can override a power of attorney?
What is a Power of Attorney?
Giving another power of attorney gives that person or persons the legal right to act on your behalf. In Florida, giving someone the power of attorney is primarily used to give them control over financial decisions.
You can also grant another person the right to make healthcare decisions on your behalf as your designated healthcare surrogate in the event that you become incapacitated. Be sure to discuss your wishes with your designated health surrogate in the presence of an attorney regarding that eventuality, and it is advisable to put them in writing as well.
What Types of Power of Attorney are There in Florida?
There are several types of power of attorney, and the power that you create will depend on your specific needs.
The person that you designate to have your power of attorney is referred to as your agent, and you are the principle as executor of the documents. You may choose to provide your agent with broad, general power of attorney, or you may choose to only provide them power over specific matters.
In the State of Florida, you can create the following types of power of attorney:
General Power of Attorney
If you choose to provide your agent general power of attorney, this gives them broad authority over your affairs.
A person with general power of attorney will be able to make financial transactions on your behalf, including banking, buying or selling real estate, and acting on your behalf in government transactions, among other powers.
Limited or Special Power of Attorney
Offering a limited power of attorney allows you to choose an agent to act on your behalf for specific transactions or for a limited duration.
If you find yourself needing to travel out of the country in the middle of the home buying process, you can designate an agent to complete the closing for you while you are away. Once the specific transaction is completed or the designated time window expires, the agent’s authority will terminate.
Durable Power of Attorney
Creating a durable power of attorney allows you to give effective authority to your chosen agent even after your incapacity.
You can provide this trusted individual with general or specific authority over your affairs.
To create a durable power of attorney, your designating document must include the phrase: “This durable power of attorney is not terminated by subsequent incapacity of the principal except as provided in Chapter 709, Florida Statutes.”
Springing Power of Attorney
Although this type of power of attorney was discontinued in Florida when the Legislature drafted a major overhaul of the power of attorney law in 2011, it is helpful to know that principles used to be able to provide authority to their agents only kicked in upon incapacity of the principle.
The present law in Florida is that the designated power of attorney is effective immediately upon filing the required documents.
Who Can Create a Power of Attorney in Florida?
In order to create a power of attorney, the principal or the principal in conjunction with the agent(s) must have the capacity to execute the document.
Generally speaking, having capacity means that you understand the power that you are offering to your agent and the effects of power of attorney. As this is a contractual issue, typically only persons over the age of 18 and in a sound state of mind have the capacity to enter into legally binding agreements.
If a principle comes to their attorney with advanced Alzheimer’s or dementia and requests to execute a power of attorney document, this transaction may be happening too late and is considered a risk to the attorney.
If the person has lucid moments, the documents may be executed during these times, provided that the principal understands what they are signing. Consulting an attorney at an earlier stage during your estate planning process will ensure the smooth completion of the documents.
Now that we’ve gotten through the basics, let’s answer your question… Who Can Override a Power of Attorney in Florida?
Who Can Override a Power of Attorney in Florida?
The person who can override the power of attorney depends on the type of power of attorney and the reason that termination of the right is being sought.
In any situation, the principal can override their own power of attorney at any time if they have the capacity to do so. If relatives of the principal become concerned with the actions of the designated agent because they perceive neglect of your wishes or abuse of the power provided, they may be able to seek legal action to correct the situation.
When relatives consider seeking termination or revocation of the designated agent’s power of attorney, they should treat this as a very serious matter. Agents are legally required to act in the best interest of the principal.
If, after careful consideration, the belief still exists that the agent is abusing their power, those seeking to revoke the power of attorney should consult their lawyer to review the document and complete the following steps:
1. Consult the Principle
If you, as the principal, are still of sound mind, relatives should voice their concerns directly with you. The principle has the power to change or remove its chosen agent at any time. This can be done verbally, but ideally, you should file a revocation of power of attorney form.
2. Approach the Agent to Request They Step Down
Through their attorney, relatives can make a formal request to the agent that they step down from their role if you are unwilling to revoke their power of attorney. If the agent refuses their role, it will fall to the alternate agent named in the power of attorney document. If no alternate has been named, relatives must make a court application to appoint a guardian or conservator to act on your behalf.
3. Get Ready to Take Your Concerns to Court
If the agent refuses to step down from their power of attorney appointment, and you as a mentally competent principal refuse to remove them, your relatives will need to go to court to prove that your best interests are not being served by the agent.
Their lawyer will be able to file a petition with the court to temporarily set aside the power of attorney provided to the agent and transfer it to someone else while the case is ongoing.
In the event that the case must go to trial, your loved ones will need to be able to prove that your appointed agent is not acting in your best interests, while simultaneously proving that your wishes should be rejected due to mental incapacity.
They will need to hire an experienced estate planning attorney who will be able to work with experts to determine the best way to frame the case.
Contact Carey Leisure & Neal for Assistance
Estate planning is an extremely important process to ensure that your final wishes are carried out according to plan. To that end, the attorneys at Carey Leisure & Neal have worked hard to find the best local attorneys in the probate and estate planning field and would be happy to refer you to someone we trust.
Carey Leisure & Neal is a personal injury law firm with over 35 years of experience. If you need assistance finding an excellent estate planning attorney, or if you need help with a personal injury claim or auto accident case, contact us today.