According to Florida law, an attorney-in-fact is only allowed to exercise powers stipulated in a power of attorney apart from those that are not allowed by law. Examples of powers that can be passed by the general power of attorney include the performance of financial duties such as bank transactions and management of assets. An attorney in fact, however, requires consent from a spouse before the sale of a principal’s primary homestead or residence in view of protecting a spouse. An attorney-in-fact is also prohibited from signing documents declaring that principal heard or saw, voting on behalf of the principal in public elections, writing or revoking a will for the principal or take over contracts awarded to the principal before their incapacitation.
An attorney in fact who has accepted in writing or through acting under a power of attorney is required to act prudently. The relationship created by a power of attorney is fiduciary in that it is anchored on trust. Attorney in fact who fail to act in trust may be liable for civil or criminal offenses depending on the interpretation of the court. Although third parties have the right to confirm the legitimacy of a power of attorney, they may be liable for damages, attorney’s costs and court fees in the event that refusal or delay in honoring a power of attorney causes damages. The existence of a power of attorney avoids the need for guardianship even in cases where guardianship proceedings are filed. The court can, however, terminate durable powers of attorney depending on its findings in cases seeking a determination of incapacitation of a principal. In my view, despite the limitations, a general power of attorney contains too much power that may be dangerous if the standard of care is not observed.
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