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Misuse of a Power of Attorney

While there are several differing types of Power of Attorney recognized as valid in the state of Florida, one thing remains the same across the board… they all carry the potential for misuse. For this reason, the Florida state legislature has enacted certain limitations on what an attorney-in-fact is allowed to do. They are set out under Florida Statute § 709.08.

The most common usage of these powers are found in what is known as a Durable Power of Attorney. It is extremely important that a Principal who is granting these powers to another individual be sure it is someone who can be trusted. This type of power is non-revocable, and can be used whether a Principal is mentally competent or incapacitated. Therefore, it provides great potential for misuse.

In an effort to prevent any misuse, the state of Florida set out three rules. First, the durable power of attorney must be in writing. Second, it must be executed with the same formalities as any transfer of real property would be. In layman’s terms, it cannot be signed without proper witnesses and legalities. Third, it must contain wording which specifically convey the Principal’s intent to allow these powers for use regardless of capacity or incapacity.

These powers grant a person absolute control of a Principal’s assets and decisions. Therefore, the potential for abuse or misuse is high. For example, if a person who holds a durable Power of Attorney decided to withdraw all monies from bank accounts and disappear, he or she would have violated their duties. The Principal would then have to file as estate litigation, which is an extremely complex matter that can sometimes take years to settle. A knowledgeable estate planning attorney can not only draft a Power of Attorney, but also will be helpful in providing guidance and making sure all parties know exactly what powers it conveys. In the event of a misuse of power, he or she will also be able to assist with filing the proper estate litigation.