FLORIDA POWER OF ATTORNEY – AGENT RESPONSIBILITIES & LIABILITIES AND WHAT TO DO IF YOU SUSPECT ABUSE BY THE AGENT

1. AGENT DUTY AND LIABLITY UNDER FLORIDA LAW

A power of attorney is a legal document in which a person (the “principal”) grants authority to another person (the “agent”) to act on their behalf. This authority can be limited to specific tasks or can be broad and cover a wide range of responsibilities. Florida has a statutory provision identifying the duties of an agent as follows:

Fla. Stat. 709.2114 Agent’s duties.—

(1) An agent is a fiduciary. Notwithstanding the provisions in the power of attorney, an agent who has accepted appointment:

(a) Must act only within the scope of authority granted in the power of attorney. In exercising that authority, the agent:

1. May not act contrary to the principal’s reasonable expectations actually known by the agent;

2. Must act in good faith;

3. May not act in a manner that is contrary to the principal’s best interest, except as provided in paragraph (2)(d) and s. 709.2202; and

4. Must attempt to preserve the principal’s estate plan, to the extent actually known by the agent, if preserving the plan is consistent with the principal’s best interest based on all relevant factors, including:

a. The value and nature of the principal’s property;

b. The principal’s foreseeable obligations and need for maintenance;

c. Minimization of taxes, including income, estate, inheritance, generation-skipping transfer, and gift taxes;

d. Eligibility for a benefit, a program, or assistance under a statute or rule; and

e. The principal’s personal history of making or joining in making gifts;

(b) May not delegate authority to a third person except as authorized under s. 518.112 or this part or by executing a power of attorney on a form prescribed by a government or governmental subdivision, agency, or instrumentality for a governmental purpose;

(c) Must keep a record of all receipts, disbursements, and transactions made on behalf of the principal; and

(d) Must create and maintain an accurate inventory each time the agent accesses the principal’s safe-deposit box, if the power of attorney authorizes the agent to access the box.

(2) Except as otherwise provided in the power of attorney, an agent who has accepted appointment shall:

(a) Act loyally for the sole benefit of the principal;

(b) Act so as not to create a conflict of interest that impairs the agent’s ability to act impartially in the principal’s best interest;

(c) Act with the care, competence, and diligence ordinarily exercised by agents in similar circumstances; and

(d) Cooperate with a person who has authority to make health care decisions for the principal in order to carry out the principal’s reasonable expectations to the extent actually known by the agent and, otherwise, act in the principal’s best interest.

(3) An agent who acts in good faith is not liable to any beneficiary of the principal’s estate plan for failure to preserve the plan.

(4) If an agent is selected by the principal because of special skills or expertise possessed by the agent or in reliance on the agent’s representation that the agent has special skills or expertise, the special skills or expertise must be considered in determining whether the agent has acted with care, competence, and diligence under the circumstances.

(5) Absent a breach of duty to the principal, an agent is not liable if the value of the principal’s property declines.

(6) Except as otherwise provided in the power of attorney, an agent is not required to disclose receipts, disbursements, transactions conducted on behalf of the principal, or safe-deposit box inventories, unless ordered by a court or requested by the principal, a court-appointed guardian, another fiduciary acting for the principal, a governmental agency having authority to protect the welfare of the principal, or, upon the death of the principal, by the personal representative or successor in interest of the principal’s estate. If requested, the agent must comply with the request within 60 days or provide a writing or other record substantiating why additional time is needed and comply with the request within an additional 60 days.

According to Florida law an agent is a fiduciary, meaning that they have a legal duty to act in the best interests of the principal. The agent must act within the scope of authority granted in the power of attorney and must act in good faith and in the best interests of the principal. The agent is not allowed to act in a way that is contrary to the principal’s reasonable expectations or contrary to the principal’s best interests, except as provided in the statute. The agent is also required to keep a record of all receipts, disbursements, and transactions made on behalf of the principal and to create and maintain an accurate inventory each time the agent accesses the principal’s safe-deposit box, if authorized to do so under the power of attorney.

The agent is required to act loyally for the sole benefit of the principal and to avoid conflicts of interest that could impair their ability to act impartially in the principal’s best interest. The agent must also act with care, competence, and diligence and must cooperate with a person who has authority to make health care decisions for the principal.

If the agent is selected by the principal because of their special skills or expertise, they must use those skills in acting on behalf of the principal. The agent is not liable for any decline in the value of the principal’s property, unless there has been a breach of duty to the principal.

Finally, the agent is not required to disclose receipts, disbursements, transactions, or safe-deposit box inventories unless requested by the principal, a court-appointed guardian, a governmental agency, or upon the death of the principal, by the personal representative or successor in interest of the principal’s estate. If requested, the agent must comply with the request within a certain timeframe.

The agent is required to comply with a request for receipts, disbursements, transactions, or safe-deposit box inventories within 60 days, or provide a writing or other record explaining why additional time is needed and then comply within an additional 60 days. This means that the agent has a total of 120 days to provide the requested information.

If the agent breaches their duties or fails to act in accordance with the provisions of the power of attorney or the law, they may be held liable for their actions. This means that the agent may be held financially responsible for any damages or losses that result from their breach of duty.

In addition to potential financial liability, an agent who breaches their duties may also be subject to other consequences, such as being removed as the agent or having their authority under the power of attorney terminated.

It is important for an agent to understand and fulfill their duties and responsibilities under a power of attorney in order to avoid liability and protect the interests of the principal.

TIPS FOR AGENTS ACTING UNDER A FLORIDA POWER OF ATTORNEY

1. Understand the scope of your authority: As an agent, you are granted certain powers and authority by the principal under the power of attorney. It is important that you understand the limits of this authority and act only within those limits.
2. Act in the best interests of the principal only: As a fiduciary, you have a legal duty to act in the best interests of the principal. This means that you should prioritize the well-being and financial interests of the principal over your own interests or anyone elses.
3. Act in good faith: You should always act in good faith and with honesty and integrity when acting on behalf of the principal.
4. Keep accurate records: You are required by law to keep a record of all receipts, disbursements, and transactions made on behalf of the principal. It is important to maintain accurate and complete records in order to fulfill your duties as an agent.
5. Avoid conflicts of interest: You should avoid any situation that could create a conflict of interest that impairs your ability to act impartially in the principal’s best interest.
6. Act with care, competence, and diligence: You are required to act with the care, competence, and diligence that is ordinarily exercised by agents in similar circumstances. This means that you should use reasonable judgment and take appropriate steps to protect the interests of the principal.
7. Cooperate with healthcare decision-makers: If the principal has granted someone else authority to make healthcare decisions on their behalf, you should cooperate with that person in order to carry out the principal’s reasonable expectations to the extent that you are aware of them. If you are not aware of the principal’s reasonable expectations, you should act in the principal’s best interest.

2. POWER ATTORNEY ABUSE IN FLORIDA

Power of attorney abuse occurs when an agent appointed under a power of attorney takes actions that are outside the scope of their authority or that are not in the best interests of the principal. Power of attorney abuse can take many forms, including financial exploitation, such as misusing the principal’s assets or funds for personal gain; neglect, such as failing to provide necessary care or support for the principal; and physical, emotional, or sexual abuse. We litigate a range of power of attorney abuse cases for principals who are alive and also for Estate proceedings were the principal has passed away.

It is important to act quickly if you suspect power of attorney abuse, as the longer the abuse continues, the more damage it can cause. If the abuse involves criminal activity, such as fraud or embezzlement, you should consider reporting the abuse to the police or a district attorney. An attorney can also provide guidance on how to address power of attorney abuse and take legal action to protect the interests of the principal.

TIPS FOR SUSPECTED ABUSE BY AN AGENT

1. Review the power of attorney document: Review the power of attorney document to understand the scope of the agent’s authority and any limitations or restrictions on their actions. This can help you identify any actions that may be outside the agent’s authority or contrary to the principal’s wishes.
2. Gather evidence: If you suspect abuse, it is important to gather evidence to support your claim. This may include financial records, bank statements, and other documentation related to the agent’s actions.
3. Talk to the principal: If the principal is capable of making decisions, try to speak with them about your concerns. It may be that the principal is aware of the actions being taken by the agent and has given their consent.
4. Contact an attorney: If you are unable to resolve the issue through conversation with the principal or if the principal is unable to make decisions due to incapacity, consider contacting an attorney for advice on how to proceed. An attorney can help you understand your options and take appropriate legal action to protect the interests of the principal.
5. Report the abuse: If you believe that the abuse of the power of attorney involves criminal activity, such as fraud or embezzlement, you should consider reporting the abuse to the appropriate authorities, such as the police or a district attorney.

If you are experiencing issues with a power of attorney and need legal representation, don’t hesitate to call me at 813-501-5071. I have extensive experience in handling power of attorney litigation cases and can provide the guidance and representation you need to protect your interests and resolve any disputes. Don’t let power of attorney issues go unresolved – call me today for a consultation.