Financial durable powers of attorney (“FDPOAs”) allow an individual to appoint an agent to make financial decisions and conduct business on his or her behalf. FDPOAs are crucial in avoiding the necessity for a Florida guardian of the estate to be appointed by the probate court to handle financial and business affairs should the individual become incapacitated.

Although Florida-specific FDPOAs will generally be similar to Michigan-specific FDPOAs, there are a few important differences.

  1. Michigan allows for “springing” FDPOAs which become effective only upon the individual’s incapacity. However, Florida does not allow springing FDPOAS, and all such documents must be effective immediately upon execution.
  2. Michigan allows for very broad powers to be included in Michigan FDPOAs such as the creation of trusts or gifting provisions. Florida also allows such “superpowers,” but the individual must initial next to each to give effect to the superpower. These include:
    1. The ability for the agent to create a trust;
    2. The ability for the agent to amend or revoke a trust already in existence;
    3. The ability to make gifts of the individual’s assets;
    4. The ability to create or change rights of survivorship;
    5. The ability to initiate or change beneficiary designations for financial assets;
    6. The ability to waive the individual’s right to be a beneficiary of a retirement plan; and
    7. The ability to disclaim property or execute powers of appointment.

Therefore, if these expanded powers are anticipated, they will need to be individually listed and initialed.

  1. General grants of power in a Florida FDPOA such as “I hereby grant my agent the authority to do anything I might do” are not effective.
  2. Michigan FDPOAs must be signed either in the presence of two witnesses or a notary public. Florida FDPOAs must be signed in the presence of two witnesses and a notary public.

Additionally, whereas individuals may encounter difficulties in Michigan with third parties rejecting FPDOAs, Florida mandates the acceptance of FDPOAs unless one of five exceptions are met. FDPOAs must be accepted or rejected within a reasonable time, which is defined as four days, excluding weekends and legal holidays. Third parties may be held liable for fees and costs for unreasonably refusing to honor a FDPOA.

FDPOAs are an important part of any estate plan for Florida residents. Coupled with healthcare surrogate designations and living wills, individuals can be assured that they have trusted agents in place to make medical and financial decisions in the event of incapacity.