Power of Attorney
Table of Contents:
- What Is A Will?
- What Can Be Accomplished By A Will?
- What Happens When There Is No Will?
- May You Dispose Of Your Property In Any Way You Wish By A Will?
- Must You Leave Each Child At Least One Dollar?
- How Long Is A Will Good?
- Does A Will Increase Probate Expenses?
- Are Estates By Entireties Or Joint Tenancy With Right Of Survivorship Substitutes For A Will?
- Is A Life Insurance Program A Substitute For A Will?
- Is A Trust A Substitute For A Will?
- Do You Have To Go To Court To Probate A Will?
- Who Should Prepare A Will?
- Some Suggestions Concerning Wills
- If You Need A Lawyer
WHAT IS A WILL?
A will is a written direction controlling the disposition of property at death. The laws of each state set the formal requirements for a legal will.
You, the maker of the will (called the testator), must be at least 18 years old.
You must be of sound mind at the time you sign your will.
Your will must be written.
Your will must be witnessed and notarized in the special manner provided by law frilliest is necessary to follow exactly the formalities required by Florida law for the execution of a will.
To be effective, your will must be proved valid in and allowed by the probate court.
No will becomes final until the death of the testator, and it may be changed or added toby the testator by drawing a new will or by a “codicil,” which is simply a separately written addition or amendment executed with the same formalities as a will. A will’s terms cannot be changed by writing something in or crossing something out after the will is executed. In fact, writing on the will after its execution may invalidate part of the will or all of it.
WHAT CAN BE ACCOMPLISHED BY A WILL?
Through a will, you decide who gets your property instead of the law making the choice for you.
You may name the personal representative (executor) of your will as you choose, provided the one named can qualify under Florida law. A personal representative is one who manages an estate, and it may be either an individual or a bank or trust company, subject to certain limitations.
A trust may be created in your will whereby the estate or a portion of the estate will be kept intact with income distributed to or accumulated for the benefit of members of the family or others. Minors can be cared for without the expense of proceedings for guardianship of property.
Real estate and other assets may be sold without court proceedings if your will adequately authorizes it.
You may make gifts, effective at or after your death, to charity.
You decide who bears any tax burden, rather than the law making that decision. A guardian may be named for minor children.
WHAT HAPPENS WHEN THERE IS NO WILL?
If you die without a will (this is called dying “intestate”), your property will be distributed to your heirs according to a formula fixed by law. Your property does not go to the state of Florida unless there are absolutely no heirs at law, which is very unlikely. In other words, if you fail to make a will, the inheritance statute determines who gets your property. The inheritance statute contains a rigid formula and makes no exception for those in unusual need.
When there is no will, the court appoints a personal representative, known or unknown to you, to manage your estate. The cost of probate may be greater than if you had planned your estate with a will, and the administration of your estate may be subject to greater court supervision.
MAY YOU DISPOSE OF YOUR PROPERTY IN ANY WAY YOU WISH BY A WILL?
While any sort of property may be transferred by will, there are some particular interests in property that cannot be willed because the right of the owner terminates automatically upon death, or others have been granted rights in the property by Florida law. Some examples of these types of property rights or interests are:
Except in certain awfully specific circumstances, a homestead (that is, the residence and adjoining lands owned by a person who is survived by a spouse or minor child up to one-half acre within limits of an incorporated city or town or up to 160 acres outside those limits).
A life estate: property owned only for the life of the owner.
Any property owned jointly with another person or persons with the right of survivorship (for example, a tenancy by the entireties, which is limited to joint ownership between a husband and wife, would be a property that automatically passes to the joint owner). You may not disinherit your spouse without a properly executed marital agreement. The law gives a surviving spouse a choice to take either the share provided under the will or a portion of your property determined under Florida’s “elective share” statute. This statute uses a formula to calculate the size of the surviving spouse’s elective share. Which includes amounts stemming from your jointly held and trust property, life insurance and other non-probate assets. Because this formula is overly complicated, it is usually necessary to refer this matter to an attorney with extensive experience in this area of law. Also, if your will was made before the marriage and the will does not either provide for your spouse or show your intention not to provide for your spouse, then your spouse would receive the same share of your estate as if you had died without a will (at least one-half of your estate), unless provision for the spouse was made or waived in a marital agreement.
MUST YOU LEAVE EACH CHILD AT LEAST ONE DOLLAR?
No. This is not necessary and can actually cause considerable added expense to the estate. It is better simply to state in the will that no provision is being made for that child.
HOW LONG IS A WILL GOOD?
It is “good” until it is changed or revoked in the manner required by law. Your will may be changed as often as you desire while you are sane and not under undue influence, duress or fraud, provided it is changed in the required manner. Changes in circumstances after the execution of the will, such as tax law amendments, birth of children, deaths, marriage, divorce or even a substantial change in the nature or amount of your assets, may raise questions as to the adequacy of your will. All changes require a careful analysis and reconsideration of all the provisions of your will and may make it advisable to change the will to conform to the new situation.
DOES A WILL INCREASE PROBATE EXPENSES?
No. If there is property to be administered or taxes to be paid or both, the existence of a will does not increase probate expenses. A will frequently reduces expenses and eliminates uncertainties. If there is real or personal property to be transferred at your death, the probate court will have jurisdiction to ensure that it is transferred properly, either according to your will or, if there is no will, in accordance with the inheritance(“intestacy”) statute. Thus, even if you have no will, your heirs must go to court to administer your estate, obtain an order determining your legal heirs, or obtain a determination that administration is unnecessary. These procedures are often more expensive than administering your will, since a properly drawn will names the beneficiaries and delineates procedures to simplify the administration process.
ARE ESTATES BY ENTIRETIES OR JOINT TENANCY WITH RIGHT OF SURVIVORSHIP SUBSTITUTES FOR A WILL?
Joint tenancies with rights of survivorship can be established when you and one or more people title bank accounts and other assets in multiple names with the intent to have ownership pass directly to the surviving named owners when you die. A “tenancy by the entireties” is much the same but involves only married people. These forms of joint ownership can avoid probate of the account or other asset when you die. While this can be very efficient in some cases, use of joint ownership can be fraught with problems at death and cause more problems than it solves.
Among other unforeseen problems, indiscriminate use of joint ownership can cause an increase in estate taxes over the joint lives of married people, force double probates in the event of simultaneous deaths, create unfairness as to who pays for funeral expenses and claims against you, raise undesired exposure during life to the debts of co-owners, and cause a shortage of funds for payment of estate taxes, which can cause litigation with the taxing authorities.
IS A LIFE INSURANCE PROGRAM A SUBSTITUTE FOR A WILL?
No. Life insurance is only one kind of property that you may own, and a will is necessary to dispose of other assets that you own at death. If a life insurance policy is payable to an individual, your will has no effect on the proceeds. If the policy is payable to your estate, the disposition of the proceeds may be directed by the will. Life insurance can be useful in providing cash at death for payment of taxes and expenses, but like most strategies for insurance, the careful person will consult a lawyer, a life insurance counselor and a financial adviser. Mistakes in ownership and beneficiary designations in these policies can cause great increases in estate taxes owed.
IS A TRUST A SUBSTITUTE FOR A WILL?
No, in most situations. A trust may be used in addition to a will. This is because a trust can handle only the property that has been put into it. Any property of yours that is not placed in the trust either during life or at death in most instances escapes the control of the trust. It is the will that controls all property in your name at the time of death if the will is drafted properly. Trusts can be helpful to speed administration and save taxes if they are drafted properly and funded during life with the property intended to be transferred by the trust. Often, however, improperly drafted or incorrectly funded or administered trusts can add to the cost of settling estates, not lower it. Furthermore, it is the probate of the will that can clear creditors’ claims, which is not possible with just a trust administration.
DO YOU HAVE TO GO TO COURT TO PROBATE A WILL?
No, personal court appearances are usually not needed to probate a will. However, documents must be filed with the court to procure a probate order and administer estates. In most counties, neither the estate attorney nor the interested persons ever appear in the courtroom.
WHO SHOULD PREPARE A WILL?
You would not employ “just anyone” to fill teeth, take out an appendix or deliver a baby. Except in a dire emergency, such important tasks should not be performed by anyone except the trained professional.
The drafting of a will involves making decisions that require professional judgment that can be obtained only by years of training, experience and study. Only the practicing lawyer can avoid the innumerable pitfalls and advise the course best suited for your individual situation. In addition, an experienced attorney will be able to coordinate the use of other skilled professionals, such as an investment adviser, actuary, insurance specialist and tax accountant, to complete a proper estate plan.
Moreover, there is no such thing as a “simple will.” Even smaller estates can have complexities foreseeable only by the experienced attorney.
SOME SUGGESTIONS CONCERNING WILLS
Marriage does not cancel a will in Florida, but a spouse acquired after the execution of your will may receive the same portion of your estate that he or she would have received had you died without a will (at least one-half). If you have moved to Florida from another state, it is wise to have your will reviewed by a Florida lawyer in order to be sure that it is properly executed according to the laws of Florida, that the witnesses are readily available to prove your will in Florida, and that your personal representative is qualified to serve in Florida.
Before your will is effective to dispose of your property, it must be proved in the probate court. If the will is self-proving and otherwise valid, it may be admitted to probate without further proof. If the will is not self-proving, it generally must be proved by the oath of one of the witnesses. The oath must be given before a circuit judge, clerk of court or a commissioner specially appointed by the court for that purpose. (Under certain circumstances, the court may permit the will to be proved by other means permitted bylaw.) A will can be made self-proving either at the time of its execution or later, which saves the time and expense of locating a witness and obtaining the witness’ oath after your death. For your will to be made self-proving, you must acknowledge the will before an officer authorized to administer oaths; the witnesses must make affidavits before the officer; and the officer must evidence the acknowledgment and affidavits by a certificate attached to or following the will. An appropriate form of certificate is prescribed by Florida law. The self-proving procedure is in addition to the normal execution and witnessing of the will, not in place of it.
No matter how perfect a will may be prepared for you, unless it is properly executed in strict compliance with the laws of Florida, the will may be entirely void. Be sure that you execute your will in the presence of your attorney, who knows exactly how and in what order the will should be signed.
Every person owning property who wishes to exercise control in the disposition of that property after death should have a will, regardless of the value of the property. Of course, the larger the estate the greater the tax consequences.
The following additional documents should be considered for signing when you make your will:
Living will: Florida statutes now provide for a written declaration by an individual specifying directions as to use of life-prolonging procedures.
Power of attorney: This document can assist in handling your property if you become incapacitated, without having to open a guardianship proceeding in court. This is especially valuable for paying your bills and protecting your assets. A power of attorney is no longer valid or enforceable after your death.
Health care surrogate: Florida law now allows you to designate a person to make health care decisions for you when you may not be able to do so. Included in this important appointment is the power to decide when to withdraw medical procedures.
Pre-need guardian designation: Florida law allows you to designate a person who could be appointed guardian over you should you become incapacitated and/or over your children should you become incapacitated or upon your death. If you fail to designate a guardian, the court will do so for you if it becomes necessary.
Power of Attorney:
Table of Contents:
- About the Power of Attorney
- Powers and Duties of an Agent
- Using the Power of Attorney
- Relationship of Power of Attorney to Other Legal Instruments
- Termination of the Power of Attorney
- Financial Management and the Liability of An Agent
- Where To Learn More
ABOUT THE POWER OF ATTORNEY
What is a power of attorney? A power of attorney is a legal document delegating authority from one person to another. In the document, the maker of the power of attorney (the “principal”) grants the right to act on the maker’s behalf as that person’s agent. What authority is granted depends on the specific language of the power of attorney. A person giving a power of attorney may make it overly broad or may limit it to certain specific acts.
What are some uses of a power of attorney? A power of attorney may be used to give another the right to sell a car, home or other property. A power of attorney might be used to allow another to access bank accounts, sign a contract, make health care decisions, handle financial transactions or sign legal documents for the principal. A power of attorney may give others the right to do almost any legal act that the maker of the power of attorney could do, including the ability to create trusts and make gifts.
Where may a person obtain a power of attorney? A power of attorney is an important and powerful legal document, as it is authority for someone to act in someone else’s legal capacity. It should be drawn by a lawyer to meet the person’s specific circumstances. Pre-printed forms may fail to provide the protection desired.
Does a power of attorney need witnesses or a notary? A power of attorney must be signed by the principal and by two witnesses to the principal’s signature, and a notary must acknowledge the principal’s signature for the power of attorney to be properly executed and valid under Florida law. There are exceptions for military powers of attorney and for powers of attorney created under the laws of another state.
What is a “principal”? The “principal” is the maker of the power of attorney – the person who is delegating authority to another. This is the person who is allowing someone else to act on his or her behalf.
What is an “agent”? The “agent” is the recipient of the power of attorney – the party who is given the power to act on behalf of the principal. The agent is sometimes referred to as an “attorney-in-fact.” The term “attorney-in-fact” does not mean the person is a lawyer.
What is a “third party”? As used in this pamphlet, a “third party” is a person or institution with whom the agent has dealings on behalf of the principal. Examples include a bank, a doctor, the buyer of property that the agent is selling for the principal, a broker, or anyone else with whom the agent must deal on behalf of the principal.
What is a “limited power of attorney”? A “limited power of attorney” gives the agent authority to conduct a specific act. For example, a person might use a limited power of attorney to sell a home in another state by delegating authority to another person to handle the transaction locally. Such a power could be “limited” to selling the home or to other specified acts.
What is a “general power of attorney”? A “general power of attorney” typically gives the agent overly broad powers to perform any legal act on behalf of the principal. A specific list of the types of activities the agent is authorized to perform must be included in the document.
What is a “durable power of attorney”? A power of attorney terminates if the principal becomes incapacitated, unless it is a special kind of power of attorney known as a “durable power of attorney.” A durable power of attorney remains effective even if a person becomes incapacitated. However, there are certain exceptions specified in Florida law when a durable power of attorney may not be used for an incapacitated principal. A durable power of attorney must contain special wording that provides the power survives the incapacity of the principal. Most powers of attorney granted today are durable.
Must a person be competent to sign a power of attorney? Yes. The principal must understand what he or she is signing at the time the document is signed. The principal must understand the effect of a power of attorney, to whom the power of attorney is being given and what property may be affected by the power of attorney.
Who may serve as an agent? Any competent person 18 years of age or older may serve as an agent. Agents should be chosen for reliability and trustworthiness. Certain financial institutions with trust powers also may serve as agents.
What happens if the power of attorney was created under the laws of another state? If the power of attorney was properly executed under the other state’s laws, then it may be used in Florida, but its use will be subject to Florida’s Power of Attorney Act and other state laws. The agent may act only as authorized by Florida law and the terms of the power of attorney. There are additional requirements for real estate transactions in Florida, and if the power of attorney does not comply with those requirements its use may be limited to banking and other non-real estate transactions. The third party also may request an opinion of counsel that the power of attorney was properly executed in accordance with the laws of the other state.10/6/2020 Consumer Pamphlet: Florida Power of Attorney – The Florida Bar https://www.floridabar.org/public/consumer/pamphlet13/ 4/11
POWERS AND DUTIES OF AGENT
What activities are permitted by an agent? An agent may perform only those acts specified in the power of attorney and any acts reasonably necessary to give effect to the specified acts. If an agent is unsure about authorization to do a particular act, the agent should consult the lawyer who prepared the document or other legal counsel.
Two types of acts may be incorporated by a simple reference to the statutes in the power of attorney – the “authority to conduct banking transactions as provided in Section709.2208(1), Florida Statutes” and the “authority to conduct investment transactions as provided in Section 709.2208(2), Florida Statutes.” When either of these phrases is included in the power of attorney, all of the acts authorized by the referenced statute may be performed by the agent even though the specific acts are not listed in the power of attorney itself.
May an agent sell the principal’s home? Yes. If the power of attorney has been executed with the formalities of a deed and authorizes the sale of the principal’s homestead, the agent may sell it. If the principal is married, however, the agent also must obtain the authorization of the spouse.
What may an agent not do on behalf of a principal? There are a few actions that an agent is prohibited from doing even if the power of attorney states that the action is authorized. An agent, unless also a licensed member of The Florida Bar, may not practice law in Florida. An agent may not sign a document stating that the principal has knowledge of certain facts. For example, if the principal was a witness to a car accident, the agent may not sign an affidavit stating what the principal saw or heard. An agent may not vote in a public election on behalf of the principal. An agent may not create or revoke a will or codicil for the principal. If the principal was under contract to perform a personal service (i.e., to paint a portrait or provide care services), the agent is not authorized to do these things in the place of the principal. Likewise, if someone had appointed the principal to be trustee of a trust or if the court appointed the principal to be a guardian or conservator, the agent may not take over these responsibilities based solely on the authority of a power of attorney.
What are the responsibilities of an agent? While the power of attorney gives the agent authority to act on behalf of the principal, an agent is not required to serve. An agent may have a moral or other obligation to take on the responsibilities associated with the power of attorney, but the power of attorney does not create an obligation to assume the duties. However, once an agent takes on responsibility, there is a duty to act prudently. (See “Financial Management and the Liability of an Agent.”)
Is there a certain code of conduct for agents? Yes. Agents must meet certain standards of care when performing their duties. An agent is looked upon as a “fiduciary” under the law. A fiduciary relationship is one of trust. If the agent violates this trust, the law may punish the agent both civilly (by ordering the payment of restitution and punishment money) and criminally (probation or jail). The standards of care that apply to agents are discussed under “Financial Management and the Liability of an Agent.”
USING THE POWER OF ATTORNEY
When is a power of attorney effective? The power of attorney is effective as soon as the principal signs it. However, a durable power of attorney executed before Oct. 1, 2011, that is contingent on the incapacity of the principal (sometimes called a “springing” power) remains valid but is not effective until the principal’s incapacity has been certified by a physician. Springing powers of attorney may not have been created after Sept. 30, 2011.
Must the principal deliver the power of attorney to the agent right after signing or may the principal wait until such time as the services of the agent are needed? The principal may hold the power of attorney document until such time as help is needed and then give it to the agent. Often, a lawyer may fulfill this important role. For example, the principal may leave the power of attorney with the lawyer who prepared it, asking the lawyer to deliver it to the agent under certain specific conditions. Because the lawyer may not know if and when the principal is incapacitated, the principal should let the agent know that the lawyer has retained the signed document and will deliver it as directed. If the principal does not want the agent to be able to use the power of attorney until it is delivered, the power of attorney should clearly require the agent to possess the original, because copies of signed powers of attorney are sufficient for acceptance by third parties.
How does the agent initiate decision-making authority under the power of attorney? The agent should review the power of attorney document carefully to determine what authority the principal granted. After being certain that the power of attorney gives the agent the authority to act, the power of attorney (or a copy) should be taken to the third party (the bank or other institution, or person with whom the principal needs to deal).Some third parties may ask the agent to sign a document such as an affidavit, stating that the agent is acting properly. (The agent may wish to consult with a lawyer before signing such a document.) The third party should accept the power of attorney and allow the agent to act for the principal. An agent should always make it clear that documents are being signed on behalf of the principal.
How should the agent sign when acting as an agent? The agent will always want to add after his or her signature that the document is being signed “as agent for” the principal. If the agent signs only his or her own name, the agent may be held personally responsible for whatever was signed. As long as the signature clearly indicates that the document is being signed in a representative capacity and not personally, the agent is protected.
What if the third party will not accept the power of attorney? If the power of attorney was lawfully executed and it has not been revoked, suspended or terminated, third parties may be forced to honor the document. The third party is required to give the agent a written explanation of the refusal to accept the power of attorney within a reasonable time after it is presented to the third party.
Under some circumstances, if the third party’s refusal to honor the power of attorney causes damage, the third party may be liable for those damages and even attorney’s fees and court costs. Even a mere delay may cause damage, and this, too, may be actionable. It is reasonable, however, for the third party to have the time to consult with a lawyer or an internal legal department about the power of attorney. Delay for more than a short period may be unreasonable. Upon refusal or unreasonable delay, consultant attorney.
Why do third parties sometimes refuse powers of attorney? Third parties are often concerned whether the document is valid. They do not know if it was executed properly or forged. They do not know if it has been revoked. They do not know if the principal was competent at the time the power of attorney was signed. Theydon not know whether the principal has died. Third parties do not want liability for the improper use of the document. Some third parties refuse to honor powers of attorney because they believe they are protecting the principal from possible unscrupulous conduct. If your power of attorney is refused, talk to your attorney.
What if a third party requires the agent to sign an affidavit before honoring the power of attorney? A third party is authorized by Florida law to require the agent to sign an affidavit (sworn or an affirmed written statement), stating that the agent is validly exercising the authority under the power of attorney. If the agent wants to use the power of attorney, the agent may need to sign the affidavit if so requested by the third party. The purpose of the affidavit is to relieve the third party of liability for accepting an invalid power of attorney. As long as the statements in the affidavit are true at that time, the agent may sign it. The agent may wish to consult with a lawyer before signing it.
What else may the third party require? A third party also may make a reasonable request for an opinion of counsel as to any legal matter concerning the power of attorney, including its proper execution under the laws of another state. A third party may request a certified English translation if any part of the power of attorney is in a language other than English.
May the agent employ others for assistance? Yes. The agent may hire accountants, lawyers, brokers or other professionals to help with the agent’s duties but generally may not delegate the responsibilities as agent. The power of attorney was given by the principal to the agent, and the agent does not have the right to transfer that power to anyone else. It is important that the agent keep in mind the fiduciary duties when hiring professionals to help. The agent is allowed to delegate investment responsibility if the requirements of Florida Statutes Section 518.11are followed by the agent, unless the power of attorney prohibits such a delegation.
RELATIONSHIP OF POWER OF ATTORNEY TO OTHER LEGAL INSTRUMENTS
What is the difference between an agent and an executor or personal representative? An executor, termed a “personal representative” in Florida, is the person who takes care of another’s probate estate after that person dies. An agent may take care of the principal’s affairs only while the principal is alive. A personal representative may be named in a person’s will and is appointed by the court to administer the estate.
What is the difference between a “trustee” and an “agent”? Like a power of attorney, a trust may authorize an individual (the “trustee”) to act for the maker of the trust during the maker’s lifetime. Like an agent, the trustee may manage the financial affairs of the maker of the trust. A trustee has power only over an asset that is owned by the trust. In contrast, an agent may have authority over all of the principles of-trust assets. Another important distinction is that a trustee may continue acting for the maker of the trust after the maker of the trust dies. In contrast, the power of attorney expires upon the death of the principal. Whether a trust or an agent is the most appropriate tool for a specific situation is a question that should be addressed to an attorney.
May a power of attorney avoid the need for guardianship? Yes. If the incapacitated person executed a valid durable power of attorney before the incapacity, it may not be necessary for the court to appoint a guardian, since the agent already has the authority to act for the principal. As long as the agent has all necessary powers, it may not be necessary to file guardianship proceedings and, even when filed, guardianship may be averted by showing the court that a durable power of attorney exists and that it is appropriate to allow the agent to act on the principal’s behalf.
What if the principal has a “guardian” appointed by the court? If no less restrictive appropriate alternative is available, then a guardian may be appointed by the court for a person who no longer can care for his or her person or property. A person who has a guardian appointed by the court may not be able to lawfully execute a power of attorney. If an agent discovers that a guardian was appointed before the date the principal signed the power of attorney, the agent should advise a lawyer. If a guardianship court proceeding is begun after the power of attorney was signed by the principal, the authority of the agent of certain individuals is automatically suspended until the petition is dismissed, withdrawn or otherwise acted upon. The law requires that an agent receive notice of the guardianship proceeding. A power to make health care decisions, however, is not suspended unless the court specifically suspends this power. If the agent learns that guardianship or incapacity proceedings have been initiated, the agent should immediately consult with a lawyer.
TERMINATION OF THE POWER OF ATTORNEY
When does a power of attorney terminate? The authority of any agent under a power of attorney automatically ends when one of the following things happens:
The principal dies.
The principal revokes the power of attorney.
A court determines that the principal is totally or partially incapacitated and does not specifically provide that the power of attorney is to remain in force.
The purpose of the power of attorney is completed.
The term of the power of attorney expires.
In any of these instances, the power of attorney is terminated. If, after having knowledge of any of these events, a person continues to act as agent, he or she is acting without authority.
When does a particular agent’s authority terminate? The authority of an agent under a power of attorney automatically ends when one of the following things happens:
The agent dies.
The agent resigns or is removed by a court.
The agent becomes incapacitated.
There is a filing of a petition for dissolution of marriage if the agent is the principal’s spouse unless the power of attorney provides otherwise.
What is the procedure for a principal to revoke a power of attorney? The revocation must be in writing and may be done by a subsequent power of attorney. Notice should be served on the agent and any other party who might rely on the power. The notice should be served either by any form of mail that requires a signed receipt or by certain approved method of personal delivery. Special rules exist for serving notice of revocation on banks and other financial institutions. Consult with a lawyer to be sure to follow proper procedures are followed.
Court proceedings were filed to appoint a guardian for the principal or to determine whether the principal is incapacitated. How does this affect the power of attorney? If a court proceeding to determine the principal’s incapacity has been filed or if someone is seeking to appoint a guardian for the principal, the power of attorney is automatically suspended for certain agents, and those agents must not continue to act. The power to make health care decisions, however, is not suspended unless the court specifically suspends this power.
Authority as agent has been suspended because guardianship proceedings are pending for the principal. Now there is an emergency, but no guardian has been appointed yet. What now? The agent may ask the court for special permission to handle an emergency, even though the power of attorney remains otherwise suspended. Contact a lawyer.
FINANCIAL MANAGEMENT AND THE LIABILITY OF AN AGENT
What is “fiduciary responsibility”? An agent is a fiduciary and as such has multiple duties when acting for the principal. These include an overriding duty to do only those acts authorized by the power of attorney, and when performing those acts to act in accordance with the principal’s reasonable expectations, to act in the principal’s best interest and to attempt to preserve the principal’s estate plan. The preservation of the estate plan is dependent on a number of factors, including the agent’s knowledge of the plan and the needs and desires of the principal. If the agent assumes responsibility for the principal’s investments, the agent has a duty to invest and manage the assets of the principal as a prudent investor. This standard requires the agent to exercise reasonable care and caution in managing the assets of the principal. The agent must apply this standard to the overall investments and not to one specific asset. An agent possessing special financial skills or expertise Hasan obligation to use those skills. The agent is required to keep careful records and maybe required to provide an accounting. Everything the agent does for the principal should be written down, and the agent should keep all receipts and copies of all correspondence and consider logging phone calls so if the agent is questioned, records are available. Agents should consult with lawyers to be sure they understand all of the duties applicable to them.