What Is a Durable Power of Attorney?
A standard power of attorney automatically terminates when the person who created it (the "principal") becomes mentally incapacitated. A durable power of attorney is specifically designed to survive incapacity. It contains the magic language: "This power of attorney shall not be affected by the subsequent disability or incapacity of the principal."
Under Florida Statute 709.2104, a durable power of attorney must be signed by the principal in the presence of two witnesses and a notary public. It becomes effective immediately upon signing (unless it is specifically designated as a "springing" power that activates only upon incapacity).
Why It Is Essential for Real Estate
If a Florida property owner suffers a stroke, develops dementia, or is in a serious accident, someone needs the legal authority to manage their real estate:
- Pay the mortgage and property taxes to prevent foreclosure and tax sale.
- Sign a deed to sell the property if needed to fund medical care.
- Negotiate with tenants and manage rental properties.
- Hire contractors for emergency repairs (a hurricane damages the roof while the owner is in the hospital).
Without a durable power of attorney, the family must petition a Florida court for guardianship, a slow, expensive, and invasive legal process that can cost $5,000 to $15,000 and take months, all while the property sits unmanaged.
Agent's Duties
The agent (also called "attorney-in-fact") has a fiduciary duty to act solely in the principal's best interest. They must keep accurate financial records, avoid self-dealing, and never commingle the principal's funds with their own. Abuse of a durable power of attorney is a serious crime in Florida.
Related Terms
- Living Trust — An alternative incapacity planning tool that avoids POA limitations
- Probate — The estate process a durable POA helps families avoid during incapacity
- Deed — A document the agent can sign on behalf of the incapacitated principal
Barnes Walker Estate Planning
Barnes Walker's estate planning attorneys draft comprehensive durable powers of attorney for Florida property owners, ensuring our clients' real estate, financial accounts, and business interests are protected if they become unable to manage their own affairs. Request a legal inquiry for assistance.
Florida Law Reference
Fla. Stat. Ch. 709
The Florida Power of Attorney Act governs the creation, scope, and termination of powers of attorney, including durable powers that survive the principal's incapacity.
Reviewed by the attorneys at Barnes Walker, Goethe, Shea & Robinson, PLLC