Power of Attorney Abuse in Florida

The Persante Law Group handles Power of Attorney litigation matters in Clearwater, St. Petersburg and Tampa. If you would like a free consultation to discuss a potential power of attorney dispute, please do not hesitate to contact our firm at (727) 796-7666.

What is a power of attorney?

According to the Florida Bar, a power of attorney is a legal document delegating authority from one person to another. In the document, the maker of the Power of Attorney (the “principal”) grants the right to act on the maker’s behalf as their agent. What authority is granted depends on the specific language of the Power of Attorney. A person giving a Power of Attorney may make it very broad or may limit it to certain specific acts.

In more simple terms, a person can create a document that gives their power to do something, to someone else. 

For example, let's say I own a Zamboni that I really want to sell. I found a buyer, but he can only buy the Zamboni while I am at court (working hard for you!). I, of course, have the power to sell it but I am not available. I can delegate my power to sell the Zamboni to someone I trust, like my mother or father. The power doesn’t have to be a relative, I can delegate it to my trusted neighbor, too. I can also give any of them the power to deposit the proceeds money into my bank account. The question becomes, what happens if they don’t? What if they stole the Zamboni or the money?

There is a fitting superhero quote from Spiderman that coincides with powers of attorney: "With Great Power Comes Great Responsibility." Because powers of attorney can delegate such powerful authority to a person, there is the potential that the authority gets abused. 

What kind of powers can be delegated in a Power of Attorney?

How creative is your imagination? There are many different types of authority that can be delated to the agent, but it is important to know that the agent can only exercise authority that is specifically granted to the agent in the power of attorney and any authority reasonably necessary to give effect to that express grant of specific authority. 

With that said, Florida is very aware of the possibly of abuse for powers of attorney. So, Florida has enacted a requirement for specific types of authority that at more susceptible to abuse. These powers are commonly referred to as "super powers" (we aren't trying to make a super hero theme here, we promise). Although an agent can be given these super powers, Florida requires that each of the powers be individually signed or initialed by the prinicpal.

Under the following super powers, an agent can:

• Create an inter vivos trust;
• With respect to a trust created by or on behalf of the principal, amend, modify, revoke, or terminate the trust, but only if the trust instrument explicitly provides for amendment, modification, revocation, or termination by the settlor's agent;
• Make a gift, subject to subsection (4);
• Create or change rights of survivorship;
• Create or change a beneficiary designation;
• Waive the principal's right to be a beneficiary of a joint and survivor annuity, including a survivor benefit under a retirement plan; or
• Disclaim property and powers of appointment.

709.2202, Fla. Stat. (2015)

What powers are prohibited from being delegated?

Although the authority that can be delegated is quite expansive, Florida does prohibit the following from being delegated. 

An agent may not:

• Perform duties under a contract that requires the exercise of personal services of the principal;
• Make any affidavit as to the personal knowledge of the principal;
• Vote in any public election on behalf of the principal;
• Execute or revoke any will or codicil for the principal; or
• Exercise powers and authority granted to the principal as trustee or as court-appointed fiduciary.

709.2201, Fla. Stat. (2015).

What are an agent's duties?

First and foremost, an agent is a fiduciary and must only act within the scope of the authority of the power of attorney. In exercising their authority, an agent has a duty to:

• Act in good faith
• Act loyally for the sole benefit of the principal
• Act so not to create a conflict of interest that impairs the agent’s ability to act impartially to the principal’s best interest
• Act with care, competence, and diligence originally exercised by agents in similar circumstances
• Keep all financial records including receipts, disbursements, and transactions made on behalf of the principal
• Create and maintain an accurate inventory each time the agent accesses the principal’s safe-deposit box
• Preserve the principal's estate plan, if known by the agent which includes:
• preserving the value and nature of the principal's property
• minimization of taxes
• eligibility for a benefit, program, or assistance program
• considering the principal's personal history in making or joining in making gifts
• Not act contrary to the principal's reasonable expectations known by the agent
• Not act in a manner that is contrary to the principal’s best interest

709.2114, Fla. Stat. (2015).

What kind of lawsuits can be brought against the agent?

There are many claims that can be brought against an agent, depending on what they did. An agent may have breached their fiduciary duty, committed fraud, and/or theft. Under Florida’s Power of Attorney Act, a court has the authority to review the agent’s conduct, terminate the agent’s authority, remove the agent, or grant other appropriate relief.

Does the agent have to pay all of the money back?

Absolutely. When an agent abuses the power of attorney they may be responsible for many different types of damages depending on the harm they caused. But, an agent that violates Florida’s Power of Attorney Act is responsible for restoring the value of the principal’s property to what it would have been had the violation not occurred. § 709.2117, Fla. Stat. (2015).

Can attorney’s fees be recovered for abuse of a power of attorney?

If the agent is found to have violated Florida’s Power of Attorney Act, they are responsible for reasonable attorney fees and costs that were paid in suing them, as in chancery actions. § 709.2116, Fla. Stat. (2015).  Additionally, if for some reason the wrongdoer used the principal’s funds to pay for their defense, they are required to reimburse the principal or the principal's successors in interest for the attorney's fees and costs paid on the agent's behalf in defense of the agent's actions. § 709.2117, Fla. Stat. (2015).  

Who can sue when there is an abuse of the power of attorney?

A person’s right to file a lawsuit is called “standing” in Florida.

The following persons may petition the court:

• The principal or the agent, including any nominated successor agent.
• A guardian, conservator, trustee, or other fiduciary acting for the principal or the principal's estate.
• A person authorized to make health care decisions for the principal if the health care of the principal is affected by the actions of the agent.
• Any other interested person if the person demonstrates to the court's satisfaction that the person is interested in the welfare of the principal and has a good faith belief that the court's intervention is necessary.
• A governmental agency having regulatory authority to protect the welfare of the principal.
• A person asked to honor the power of attorney.

709.2116, Fla. Stat. (2015).

Contact Us:

The Persante Law Group brings actions against brokers and broker-dealers. If you believe that you may need legal assistance regarding a Florida securities litigation matter, please contact us at (727) 796-7666.

About PersanteZuroweste

PersanteZuroweste has established a reputation as prominent trial lawyers serving clients throughout Florida. Our office is conveniently located to the Clearwater, St. Petersburg, and Tampa Bay communities.