Are There Limitations on the Powers of an Agent?

Having a power of attorney, especially a durable power of attorney, in place, is an essential part of any estate plan when you are consulting with a Miami estate attorney. A power of attorney will allow a trusted person that you designate, also called an agent, to take care of your affairs for you, and in the case of a durable power of attorney, this will remain in place even if you are incapacitated. Many people do not have the best understanding of what a power of attorney give the power to do, however, especially when it comes to specific things that an agent is not able to do.

In general, having a power of attorney will give an agent the power to transact business on your behalf. This can be limited to a specific transaction or type of transaction, such as only allowing the agent to buy and sell property for you, or can allow the agent to deal with all of your affairs, including dealing with the bank or Social Security. This is not the same as designating a Health Care Surrogate, who would only have the power to make medical decisions for you while you are incapacitated and is a completely separate legal document.

Durable powers of attorney are the most common in Miami, Florida and would permit the agent to transact business for you, even in the case of becoming incapacitated. Otherwise, the power of attorney would no longer be valid when you are no longer able to make decisions for yourself.

Under the statute, there are very specific powers that are not granted when a power of attorney is executed. For example, someone with power of attorney cannot act in a way that is in opposition to what the principal wants. All of these have to do with specific performance by the principal only that the agent would not be able to do, such as if the principal was an artist who was commissioned to do a painting, the agent would not be allowed to do a painting in his or her place.

One restriction deals specifically with the principal’s will. An agent is not allowed to execute or revoke a will or codicil (a later change to a will) on behalf of the principal. This is because the principal is really the only one who is allowed to make decisions as to what happens to their estate after they die, as far as the law is concerned.

Where this does not apply is when the principal is mentally capable of executing a will, but not physically able to sign. A great example of this would be if someone becomes a quadriplegic and has normal mental capacity but is without the physical ability to write. A person, and this need not be an agent, would be able to sign a will or codicil on that person’s behalf as long as the testator verifies with the witnesses that the will is his or her intent.

A power of attorney is best done as part of a complete estate plan, including a will and other legal documents, with the aid of a Miami estate attorney to be sure that they are free of errors and best express your wishes. If you wish to speak with a Miami estate attorney, give us a call at (786) 522-1411.