A Power of Attorney (POA) is a critical legal tool that allows one person (the agent or attorney-in-fact) to act on behalf of another (the principal) in a range of legal, financial, or health care matters. In Florida, POAs are governed by Chapter 709 of the Florida Statutes, with major revisions enacted in 2011 to create greater clarity, consistency, and legal enforceability.
However, despite Florida law permitting broad delegation of authority, the effectiveness of a POA may be limited when dealing with certain state agencies or financial institutions. Some agencies may impose additional conditions, require specific forms, or even reject a POA altogether depending on their internal protocols.
1. Florida State Agencies and Powers of Attorney
Most Florida state agencies will recognize a properly executed Florida POA but may impose additional documentation or authorization requirements before acting upon it. These may include:
- A certified copy or original of the POA document.
- Specific language in the POA authorizing the relevant action (e.g., applying for benefits, transferring property, managing accounts).
- Notarization and two witnesses, as required by Florida law.
- Use of agency-specific forms, particularly in Medicaid applications through the Florida Department of Children and Families (DCF).
Example: Florida Department of Children and Families (DCF)
While DCF may accept a POA to apply for Medicaid long-term care benefits, the following conditions usually apply:
- The POA must explicitly authorize the agent to apply for government benefits or conduct Medicaid planning.
- The agent may be required to complete and submit DCF-specific forms (e.g., Form CF-ES 2505).
- If DCF suspects fraud or exploitation, they may reject the POA and request court oversight.
2. Medicaid & Long-Term Care Planning in Florida
A POA is often essential when applying for Florida Medicaid benefits for long-term care, but not all POAs are created equal.
Under Fla. Stat. § 709.2202, certain powers must be expressly granted for the POA to be valid for Medicaid planning:
- The authority to create, amend, or revoke trusts.
- The authority to make gifts or asset transfers.
- The authority to change beneficiary designations.
- The authority to apply for public benefits.
These are often referred to as “superpowers,” and a generic POA lacking this language is likely to be rejected for Medicaid planning purposes—even if durable and otherwise valid.
3. Financial Institutions & Resistance to Powers of Attorney
Despite state law, banks, brokerages, and insurance companies may resist honoring POAs. This resistance often stems from concerns about fraud, outdated documents, or unclear language.
Florida law addresses this under Fla. Stat. § 709.2120, which provides that:
- Financial institutions can be compelled by a court to accept a valid POA.
- Institutions may be held liable for unreasonable refusal to honor a properly executed POA.
Still, delays and rejections can happen. To minimize issues:
- Use a recently executed POA.
- Include clear and specific authority for financial actions.
- Present original or certified copies with valid ID &/or Supporting Affidavit.
- Keep the language comprehensive and up to date.
To be clear, if necessary- When we say, “Present original or certified copies with valid ID,” it means:
- Original or certified copy of the POA: Bring either the original signed Power of Attorney document or a certified copy issued by the attorney or notary public. A certified copy is one that is officially verified as a true and accurate copy of the original.
- Valid ID: The agent (person using the POA) should bring a government-issued photo ID (like a driver’s license or passport) to prove their identity when presenting the POA to a bank, agency, or institution.
This combination helps the institution confirm that both the document is legitimate and the person presenting it is authorized to act on the principal’s behalf.
Supporting Affidavit, an Affidavit in support of a Power of Attorney (POA) that complies with Florida law, particularly Fla. Stat. § 709.2119 can also be a very useful tool to help avoid delays, rejections, or misunderstandings, particularly with financial institutions, government agencies, or third parties who may be cautious or reluctant to honor the POA.
4. Durable Power of Attorney vs. Guardianship
A well-drafted Durable Power of Attorney is a key safeguard against the need for court-ordered guardianship. If a person becomes incapacitated and lacks a valid POA, or if their POA is too narrow or not accepted, families may be forced to petition the court for guardianship, a costly and intrusive legal process.
Key Takeaways
- A Florida POA must comply with Fla. Stat. § 709.2101 et seq. and be specific in the authority it grants.
- Medicaid and long-term care planning require POAs with explicit “superpowers” under Florida law.
- State agencies may impose form or documentation requirements, and federal agencies (like SSA or VA) may not accept POAs at all.
- Financial institutions may resist POAs unless they are recent, specific, and properly certified.
- A strong POA can prevent the need for guardianship if executed properly and timely.
Need Help with Your Power of Attorney?
Navigating Florida POA laws and ensuring your documents are accepted by banks, DCF, or other institutions can be complicated. Experienced attorneys, including those at Caserta & Spiriti, can help individuals and families draft comprehensive, legally sound Powers of Attorney and other estate planning documents that hold up under real-world scrutiny.
The foregoing is a brief and general overview of the topic and the need for specific and experienced legal and tax advice is emphasized.
Whether a Florida resident is preparing for Medicaid, managing finances for a loved one, or planning for future incapacity, CASERTA & SPIRITI in Miami Lakes, Florida is here to guide them and secure their peace of mind.