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Published: Jul 13, 2021

Updated: Dec 8, 2023

POA 101: Who Has The Power?

By Andrew David Easler, Esq.

Published: Jul 13, 2021

Updated: Dec 8, 2023

When you sit down with an attorney to go through the fundamentals of the estate planning process, one of the questions you will almost certainly be faced with is this: who would you like to designate as your power of attorney. You may be unfamiliar with this legal document and wondering, “What the heck is a power of attorney, anyway?”

Many people have questions about choosing a power of attorney and what it means, what it entails, and who you could or should designate. To help you start thinking ahead, we have answered some of the most frequently asked questions about power of attorney below.

Like everything else in the world of estate planning, there are a lot of nuances and intricacies to this legal document. If you have specific questions about your unique situation, it is best to speak with an experienced estate attorney who can walk you through your options.

What Is A Power of Attorney?

Power of attorney is a legal document that is a staple of estate planning. Essentially, you are designating someone you trust to act on your behalf and handle financial matters for you. These powers are typically, but not necessarily, deployed when a person becomes incapacitated and cannot act on their own behalf. The ‘power’ is also often used when it becomes more difficult for someone to manage their own affairs.

There is more than one type of power of attorney, so it can be instructive to go through the differences and the various scenarios in which they may be necessary. The most common form is a durable power of attorney, which would not be affected by physical or mental incapacity and gives the POA authority to continue to carry out the fiduciary responsibilities granted in the document. This is in contrast to non-durable general power of attorneys, which are rescinded upon incapacitation.

There also exist limited or special power of attorneys that give the agent the ability to carry out a specific task, such as selling a home, or to serve for a limited period of time, such as at a time when you will be out of the country.

A health care power of attorney is another document, similar to a living will, that grants an agent the authority to make medical decisions. For the purposes of this article, we are focusing on power of attorneys that are geared towards financial matters.

What Your POA Can Do

It’s important to choose someone you trust, someone who has only your best interests at heart because they actually do have quite a bit of power. A POA can open and close bank accounts, write checks, and pay bills. They can file taxes on your behalf, manage or sell properties, and apply for public benefits, such as Medicaid. A POA can also make decisions about investments, life insurance policies, and business transactions. They can also make financial gifts and funeral pre-arrangements on your behalf.

What Your POA Cannot Do

Though they may have been granted broad authority, there are many things a POA cannot do for you. They cannot vote in a public election. They are unable to make changes to a last will and testament, and they cannot assign another person to assume the responsibility of power of attorney for them.

It’s also important to note that even in the case of durable power of attorney, any and all authority is rescinded at the time of death. It’s not uncommon that the power of attorney and executor of the will are the same person, but it’s also not a given.

Who Can Be A POA?

Choosing someone to act on your behalf is a decision not to be taken lightly. While many people choose a spouse, sibling, or adult child, a POA need not be a relative. It does need to be a person who is at least 18 years of age or a financial institution that has a place of business in Florida and has legal authorization to conduct trust business.

Regardless of who you choose, it’s critical to communicate with them. First, let them know that you have named them as your power of attorney so that there are no surprises, and they are able to leap into action should a need arise. Secondly, make your wishes known regarding how you would want your financial affairs handled. They should be made aware of your financial situation, what properties need to be maintained, what bills will need to be paid, any debts that will need to be collected, etc.

It would also be prudent to share with your power of attorney what their legal obligation is. An agent must act within the scope of the powers granted to them, and they must act in good faith. Should they not perform their responsibilities in your best interest, there may be legal and financial ramifications.

Do I Need a POA?

It is a wise choice to designate a POA while you have the capacity to do so. Most importantly, it allows you to choose a person that you trust. Should you become incapacitated without a durable power of attorney in place, a guardian would need to be court-appointed. The process can be time-consuming and eliminates your opportunity to speak for yourself.

Another benefit of having a power of attorney is sheer convenience. When mobility is an issue, empowering a spouse or adult child to conduct business and run financial errands on your behalf can be tremendously helpful.

Learn More

If you have additional questions we have not answered – or if you’d like to work with a professional estate planning attorney to draw up this critical legal document, contact us. Our attorneys know that every family is different, and we take the time to understand yours. We believe the details matter, and we ensure that you walk away from the conversation feeling confident, empowered, and comfortable with the decisions you’ve made.

Disclaimer

We give great legal advice, but this page (and the rest of our site) is for informational use only and is no substitute for actual legal advice. If you’d like to establish an attorney-client relationship, reach out to us and we’ll tell you how we can make it official. Sending us an email or reading this page alone doesn’t mean we represent you.

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Responsibilities of probate attorneys include filing petitions, appointing personal representatives to manage estate affairs, notifying interested parties to ensure transparency and prevent disputes, helping conduct an inventory and appraisal of the estate's assets, overseeing the payment of debts and expenses, handling probate litigation to resolve any disputes that arise.

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Will and trust attorneys help draft legal documents to ensure their clients' wishes for asset distribution are executed correctly. They draft personalized and legally compliant wills to designate beneficiaries, appoint executors, and establish trusts for asset management and distribution. It is important to note that wills and trusts are an integral part of the estate planning process.

Responsibilities of wills and trust attorneys include providing legal advice and guidance related to asset protection, minimizing tax obligations, facilitating efficient wealth transfer to designated heirs, offering advice on appointing guardians for minor children, and drafting healthcare directives for unforeseen circumstances.

By providing tailored legal advice and crafting personalized documents, attorneys help clients safeguard their legacies, protect loved ones, and ensure that all documents are both legally compliant and enforceable.

Learn More About Wills & Trusts Schedule a Consultation

Estate planning attorneys provide advice and legal guidance for managing and distributing assets in the event of death or incapacity and assist individuals of various financial backgrounds in preparing essential legal documents such as wills, trusts, and Lady Bird Deeds, and may offer advanced techniques like offshore trusts and family-limited partnerships.

Experienced attorneys offer personalized legal advice, tailoring strategies to meet individual client needs, and assist clients in navigating complex laws and regulations affecting asset management, taxation, and inheritance.

End-of-life planning safeguards wealth and secures a lasting legacy for heirs and charitable causes. Whether estates are modest or substantial, these plans provide invaluable peace of mind and financial security for future generations.

Learn More About Estate Planning Schedule a Consultation

Civil litigation attorneys manage disputes and represent their clients effectively with various legal matters and issues. They provide clear legal advice and handle all aspects of a case, from preparing documents to gathering evidence and preparing for trial. They also offer guidance and experience to help clients navigate the legal system efficiently, ensuring that cases are managed effectively and lead to timely outcomes.

Civil litigators are also skilled negotiators, often resolving disputes outside of court to save time and maintain relationships, which is particularly vital in business and probate matters.

When trials are necessary, they present and argue cases effectively to minimize losses and secure favorable outcomes. They offer continuous support and guidance throughout the litigation process, simplifying complex legal issues for their clients in both personal and business contexts.

Learn More About Civil Litigation Schedule a Consultation

Real Estate

A real estate attorney specializes in property law, helping clients navigate the complexities of buying, selling, and managing real estate, ensuring that transactions comply with state laws and regulations, and providing protection and peace of mind.

Responsibilities of an attorney include drafting and reviewing contracts, negotiating terms, and resolving complex issues such as zoning, leasing, property development, and disputes involving boundaries or titles. Real estate attorneys are also skilled in handling litigation related to construction defects and other property disputes, helping to resolve these matters effectively and prevent potential legal challenges.

By conducting due diligence and offering strategic legal advice, attorneys play an important role in safeguarding clients’ interests. Whether for individual homeowners or commercial property investors, real estate attorneys mitigate risks, represent clients in court, and assist them with making informed decisions that are legally sound.

Learn More About Real Estate Law Learn More arrow_forward calendar_today

Business

Attorneys who practice business law provide legal advice for starting, managing, and expanding businesses, ensuring compliance with applicable laws. Their expertise covers various duties, including drafting and reviewing contracts, advising on corporate governance, facilitating business transactions such as mergers and acquisitions, forming partnerships, LLCs, and other business entities like DBAs, drafting and reviewing LLC Operating Agreements, and assisting with strategic planning.

Business attorneys also help wtih legal matters such as intellectual property rights, disputes, franchising, and regulatory compliance, represent clients in civil litigation to resolve issues like contract breaches and other civil matters, offer advice on administrative and compliance requirements, assist clients who are buying or selling businesses, and even help plan for succession and asset protection.

Attorneys help mitigate risks, safeguard company interests, assist clients in making legally sound, informed decisions, help manage growth, and provide guidance to navigate and resolve legal challenges effectively. Their strategic insights are invaluable in ensuring business operations align with legal standards and long-term objectives.

Learn More About Business Law Learn More arrow_forward calendar_today

Probate

Probate attorneys actively manage the estate administration process following an individual's death, ensuring the distribution of assets aligns with the will or state law, and handle Formal Probate Administration for complex cases, Summary Administration for smaller estates, and Ancillary Administration for assets in other states.

Responsibilities of probate attorneys include filing petitions, appointing personal representatives to manage estate affairs, notifying interested parties to ensure transparency and prevent disputes, helping conduct an inventory and appraisal of the estate's assets, overseeing the payment of debts and expenses, handling probate litigation to resolve any disputes that arise.

They also assist in distributing the assets and formally closing the estate, ensuring all legal and financial responsibilities are met, simplifying the complex probate process, honoring the decedent's wishes, and providing clarity and support to the beneficiaries.

Learn More About Probate Learn More arrow_forward calendar_today

Wills & Trusts

Will and trust attorneys help draft legal documents to ensure their clients' wishes for asset distribution are executed correctly. They draft personalized and legally compliant wills to designate beneficiaries, appoint executors, and establish trusts for asset management and distribution. It is important to note that wills and trusts are an integral part of the estate planning process.

Responsibilities of wills and trust attorneys include providing legal advice and guidance related to asset protection, minimizing tax obligations, facilitating efficient wealth transfer to designated heirs, offering advice on appointing guardians for minor children, and drafting healthcare directives for unforeseen circumstances.

By providing tailored legal advice and crafting personalized documents, attorneys help clients safeguard their legacies, protect loved ones, and ensure that all documents are both legally compliant and enforceable.

Learn More About Wills & Trusts Learn More arrow_forward calendar_today

Estate Planning

Estate planning attorneys provide advice and legal guidance for managing and distributing assets in the event of death or incapacity and assist individuals of various financial backgrounds in preparing essential legal documents such as wills, trusts, and Lady Bird Deeds, and may offer advanced techniques like offshore trusts and family-limited partnerships.

Experienced attorneys offer personalized legal advice, tailoring strategies to meet individual client needs, and assist clients in navigating complex laws and regulations affecting asset management, taxation, and inheritance.

End-of-life planning safeguards wealth and secures a lasting legacy for heirs and charitable causes. Whether estates are modest or substantial, these plans provide invaluable peace of mind and financial security for future generations.

Learn More About Estate Planning Learn More arrow_forward calendar_today

Civil Litigation

Civil litigation attorneys manage disputes and represent their clients effectively with various legal matters and issues. They provide clear legal advice and handle all aspects of a case, from preparing documents to gathering evidence and preparing for trial. They also offer guidance and experience to help clients navigate the legal system efficiently, ensuring that cases are managed effectively and lead to timely outcomes.

Civil litigators are also skilled negotiators, often resolving disputes outside of court to save time and maintain relationships, which is particularly vital in business and probate matters.

When trials are necessary, they present and argue cases effectively to minimize losses and secure favorable outcomes. They offer continuous support and guidance throughout the litigation process, simplifying complex legal issues for their clients in both personal and business contexts.

Learn More About Civil Litigation Learn More arrow_forward calendar_today

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