Table of Contents:
- Florida Laws on Power of Attorney
- Laws of Tennessee Power of Attorney
- Power of Attorney Laws in South Carolina
- Missouri Law on Power of Attorney
Types and Requirements
According to the Florida Bar Association, Florida allows various kinds of powers of attorney. Power of attorney can vary depending on the kind of power it conveys, the time when it becomes effective and the situations when it terminates. For example, a springing power of attorney is one that takes effect only if specific conditions are met. A general power of attorney (POA) allows an agent to make any decisions the principal can make, while a limited POA places limitations on the decisions the agent is authorized to make. All POAs must be made in writing by a competent principal, however. The document must be signed by the principal and an appointed agent must be at least 18 years old
Durable Power of Attorney
A durable power of attorney is one that allows an agent to act on behalf of the principal even after the principal becomes incapacitated or otherwise unable to make or express decisions. A POA in Florida terminates upon the incapacity of the principal unless it is made durable. Florida Statutes 709.08 states that to make a POA durable, the document must state that the power of attorney is not affected by the principal's incapacity, or words similar to that effect. The document must expressly state the principal's desire to allow the agent to act even if the principal becomes incapacitated or otherwise unable to revoke the POA.
Powers of attorney allow an attorney-in-fact to interact with third parties on behalf of the principal. Unfortunately, third parties do not always honor powers of attorney. This refusal can make it difficult for the attorney-in-fact to perform his duties. According to the Florida Bar Association, if third parties refuse to honor a power of attorney, the agent can force the third party to honor the document. If the refusal causes harm or damages, the third party can also be held liable for any damages caused. However, Florida law allows third parties to require the attorney-in-fact to sign an affidavit affirming the agent is validly expressing the decision making abilities authorized by the power of attorney.
Tennessee Code Section 34-6-103 makes any action taken by someone with powers of attorney have the same effect as the person (the principal) taking the action herself.
Chain of Command
If the court appoints a conservator or guardian for the principal, then anyone with powers of attorney is responsible for answering to the guardian in addition to the principal, according to Tennessee Code Section 34-6-104.
Tennessee Code Section 34-6-107 lays out the requirement that someone with powers of attorney is responsible for acting in the best interests of the principal and must be accountable to the principal.
There are 22 powers granted to someone when a principal signs over his powers of attorney, according to Tennessee Code Section 34-6-109. Essentially, someone with powers of attorney can stand in legally in nearly any business transaction and may sign with the same power as the principal. The person with powers of attorney may access safe deposit boxes in the principal's names, open and close financial accounts and make advance funeral arrangements, just to name a few.
A power of attorney is a legal document (known as a power of appointment) signed by the principal appointing another person known as the agent or attorney-in-fact, authority to perform tasks on the principal's behalf. A power of attorney is designed to protect the interest of the principal, therefore the agent or attorney-in-fact should be a trusted individual since access to finances is a common responsibility under a power of attorney.
There are several types of powers of attorney recognized in the state of South Carolina, with the most common being a durable general power of attorney, a limited or specific power of attorney and a health-care power of attorney. A power of attorney in South Carolina is valid if signed by a person over the age of 18 who is of sound mind (mentally competent) in the presence of two witnesses and a Notary Public.
Durable General Power of Attorney
A durable general power gives the agent or attorney-in-fact the authority to do anything the principal can do, with the exception of executing a last will and testament or living will. In South Carolina, under a durable general power of attorney, mental or physical disability does not extinguish the appointment and the agent has the power to sell, mortgage or rent property, cash, deposit or withdraw funds from financial institutions and perform any act which the principal would perform.
Specific or Limited Power of Attorney
In South Carolina, a specific or limited power of attorney is used for a specific act or for a limited period of time. These appointments are used in real estate transactions where the principal will be unavailable for signing or if the principal will be out of the country for an extended period of time during which certain business must be performed on his behalf. Once the time period for the specific act to be completed has expired, such as purchasing a property, the power of attorney is extinguished and no longer effective.
Health-care Power of Attorney
A health-care power of attorney is signed by the principal and appoints an agent or attorney-in-fact to make health-care decisions for the principal in case they are unable to voice their wishes due to mental or physical inability. Please note, that the power of attorney must be executed while the principal is mentally capable of executing a legal document, however its effectiveness continues if the principal becomes incapacitated. For example, Mary properly executed a health-care power of attorney in 2005 appointing her husband, Robert as agent. In 2009 Mary is in a serious car accident which leaves her incapable of speaking or writing. Robert may act as her agent under the power of attorney.
A general POA is often used for one-time transactions. For example, a principal may authorize a person, usually his attorney, to sign real estate closing paperwork if he is unable to appear in person for the transfer. Prior to 1989, Missouri law required a general POA to include specific details regarding the transaction the POA was being used for. Since then, the law has been relaxed to allow more general use, but powers authorized by the principal should be set forth in writing to avoid abuse.
Most people who sign POAs do so in preparation for a possible incapacity as they age. Section 404.705 of the Missouri Revised Statutes states that a POA can remain in effect when the principal becomes incapacitated if it is a “durable” POA. The durable POA allows the agent to handle day-to-day transactions for the principal when the principal is unable to handle them himself. An agent can perform such tasks as banking, including paying bills, purchasing and selling real estate and operating the principal’s business.
While a durable POA authorizes many powers, Missouri law requires a principal to specifically authorize an agent to exercise certain powers. Such powers include changing beneficiaries to a trust, insurance policy or other property, creating or changing trusts or making any medical decisions.
Powers granted by a durable POA have limitations. Missouri law does not allow a principal to authorize an agent to make or alter a will or living will on the principal’s behalf at any time.
A principal can select any adult over the age of 18 to serve as his agent. The agent should be someone the principal trusts, and is usually a close friend or relative. Missouri law does not allow the principal to select his primary physician or any employee in a health care facility where the principal is a patient as his agent. A principal is also prohibited from naming any sitting judge, a court clerk or any employee of the Missouri Department of Social Services or Department of Mental Health, unless that person is the principal’s relative.