Granting another person the authority to act on your behalf is most commonly done using a Durable Power of Attorney document. Such documents are created and controlled under Florida Statute §709.
There are many powers that may be granted by a Principle (the person giving power) to an Agent (the person accepting the power) including such things as access to the Principle’s financial accounts, investments, and other assets as well as the power to take loans, create legal documents, and bring a lawsuit against a person or company.
Several times in the past few years we’ve had clients that assigned powers to an Agent and that Agent did not act properly under the laws. F.S. 709 clearly states the duties of the Agent in 709.2114 such as:
- May not act contrary to the principal’s reasonable expectations actually known by the agent;
- Must act in good faith;
- 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
- Must attempt to preserve the principal’s estate plan, to the extent actually known by the agent …
- Act loyally for the sole benefit of the principal;
- 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;
- Act with the care, competence, and diligence ordinarily exercised by agents in similar circumstances; …
In the situations we encountered there was a child of an elderly client that heard the parent had assigned power of attorney to their sibling and promptly flew in from the out of country residence, took the parent attorney shopping, and attempted to obtain a new power of attorney for him/herself. Not only are the actions of the child considered undue influence, coercion and possibly fraud but the actions could be considered criminal under Florida’s laws. Regaining control was the parent’s primary concern and had it not been for a watchful employee at the assisted living facility the parent may have had serious financial and personal loss at the hands of that Agent. The new power of attorney was invalidated, the problematic child was blocked from access to all financial accounts, and a police report was filed. Department of Children and Family also got involved investigating abuse of an elder person (financial abuse).
We also in the past year assisted a family in removing a grandchild from grandmother’s home. Why would an attorney need to be involved? In this situation the grandson was driving grandmother’s classic car without a license and after being instructed he was not insured to drive it, he was having grandmother write him checks and also write checks to “cash” which he drove grandmother to the bank to cash and give him the money, and he was using drugs in her home. A difficult situation for the family, however it took an attorney’s involvement to get law enforcement involved, to keep the grandchild’s influence away from grandmother, to protect her assets and to ultimately assist her in assigning power of attorney to an appropriate person to help her handle her affairs.
There are as many stories of misdeed with regard to power of attorney documents as one can imagine. The attorneys at Mario, Gunde, Peters, Rhoden & Kelley, LLC. are dedicated to creating personalized planning documents for our clients. It is important to consider all the facts and all the potential uses for your planning documents so the powers that are granted to assist you when you need it will be valid, binding, enforceable, and have the power needed.
If you do not have a power of attorney, health care planning, or a last will please call today for a complimentary consultation. We will discuss what documents you need and how you can make decisions about your care now before you or your family are in a situation where it may be too late to create them.
With offices in Melbourne and Cocoa Village we are able to serve all of Brevard County. In 2016 we celebrated 40 years of service to this community and thank our clients for their continued confidence in handling their legal matters.