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A Limitation of Power...Thoughts from a North Miami Beach Attorney on Power of Attorneys

A power of attorney or “POA” for short can be a very useful tool. POAs are legal documents which memorialize a relationship of agency, whereby the “principal” “grantor” or “donor” grants his or her power to an “agent” so that the agent acts on behalf of the principal. POAs can be very useful documents in many cases. In the military community, POAs are used to help military spouses and other family members to conduct business that would otherwise require a deployed or unavailable military service-member to be present. In the civilian community, POAs are often used for older or disabled individuals to avoid guardianship. Guardianship, even in the friendliest of states, can be a very cumbersome process that calls for redundant court hearings, court costs, and legal fees. There are a number of variations to POAs. They can be durable and survive the incapacitation of a principal. They can be springing and come to life upon a certain event or time. They can be limited in scope or specialized to grant the agent specific authority for several tasks. They can also be abused.

A general POA has vast powers that are wide in scope. General POAs are common when used as a tool to avoid guardianship. However, because of the general language of the document and the grant of authority that comes with it, an agent with malicious intent and a general POA in hand can do much harm to the grantor. Many an individual has suffered from agents that are untrustworthy, selfish, or who otherwise abandon their fiduciary duties towards the grantor. Principals that want to revoke a power of attorney can write a document stating their intent to revoke and offer it to whatever business or organization may have honored the POA. However, this can sometimes be troublesome for the grantor, especially if the grantor does not know which company, business, or organization the adverse agent will present a power of attorney to. An oft used tactic is to include an expiration date within the document so that whatever harm an agent can do will ultimately die on the vine at some predictable future point.

In Florida, POAs are strictly construed and the only powers that are honored are the ones stated within the document. Florida courts are hesitant to allow the agent powers outside of the grantor’s intent. “Powers of attorney are strictly construed. 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." Kotsch v. Kotsch, 608 So.2d 879, 880 (Fla. 2d DCA 1992). “A power of attorney may contain a "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 . . . [However, t]he language of the POA [in this case] supports no conclusion that Mrs. Irons intended to authorize her daughter to act for her in matters related to her property rights or potential litigation with health care providers.” Estate of Irons ex rel. Springer v. Arcadia Healthcare, LC, 66 So. 3d 396, 397-400 (Fla 2d DCA 2011). Another rising tactic is to include an affidavit of acceptance from an agent acknowledging his or her powers as a fiduciary to avoid the witless agent argument. However, all principals or grantors should primarily seek to avoid any unsavory situations with an agent. All agents must be vetted with the utmost scrutiny because, whether they have a general power of attorney, a medical power of attorney, or some other specialized power of attorney, there is still room for malfeasance from an agent willing to cause harm.

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