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I Already Have a Power of Attorney? Do I Also Need a Will?


When it comes to Florida estate planning, many people look for shortcuts. They do not appreciate the fact that different legal documents cover different situations. For example, some Florida residents think that they do not need a will or trust because they’ve already given a family member a power of attorney, and that will take care of everything once they are dead.

A power of attorney is basically a document where one person (the principal) gives another person (the agent) authority to act on their behalf. Powers of attorney may be limited in scope or duration. For example, you might give an agent power of attorney to sell a particular asset for you. Other powers of attorney are “general,” meaning the agent has much broader authority to act for the principal.

In estate planning we often use what is known as a “durable” power of attorney. By law most powers of attorney expire when the principal is incapacitated and no longer able to make their own decisions. A durable power continues in force despite this contingency.

So if you sign a general durable power of attorney, you can effectively grant an agent near-total authority to manage your property and finances even after you are incapacitated. But there are still some limitations. For one thing, Florida law expressly forbids an agent from executing or revoking a will–or an amendment to an existing will–on behalf of the principal. However, your power of attorney may authorize your agent to conduct other estate planning activities for you, such as creating a living trust and changing beneficiary designations on a retirement account or life insurance policy. Keep in mind, your power of attorney must specify which of these powers the agent may exercise.

A Florida Power of Attorney Does Not Survive Death

But no matter how broad a power of attorney may be, it still must terminate the moment the principal dies. Florida law is explicit and immovable on this point. This is why a power of attorney is never a substitute for actually having a will.

If there is any property in your probate estate–i.e., that did not pass through a trust or beneficiary designation–a Florida court will need to appoint an executor or personal representative. It is ultimately the personal representative’s job to gather any probate assets and distribute them, either to the beneficiaries named in your will or the heirs designated by Florida law.

Need Advice About a Florida Will or Power of Attorney?

Of course, you are always free to name the same person as your agent under a power of attorney and as executor of your will. But these are still legally distinct positions subject to different legal requirements. A qualified Fort Myers estate planning attorney can provide you with additional information and advice. Contact the Kuhn Law Firm, P.A., at 239-333-4529 to schedule a free consultation with a member of our estate planning team today.

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