A power of attorney is one of the most fundamentally important estate planning tools. A power of attorney created when you are of sound mind allows you to name someone who will act as your agent. If the power of attorney is “durable”, the person you name as your agent can make important decisions about managing your affairs if you become incapacitated and cannot take actions to manage your own interests. The person named as your agent has a fiduciary obligation to you and must act in your best interests at all times.
As part of acting as your agent, it may be possible that your agent will make a gift under a power of attorney. However, Florida law restricts the rights of an agent to make a gift unless this authority is expressly granted. A Lakeland, FL estate planning lawyer at the Elder Law Firm of Clements & Wallace, P.L. can provide you with assistance in creating a durable power of attorney and giving your agent the power to manage your assets and affairs in the way you see fit.
When Can an Agent Make a Gift Under a Power of Attorney?
In general, when you execute a durable power of attorney, you can give your agent the power to act on your behalf on all matters. Anything you can do, your agent can do when you have a lawful power of attorney and have authorized your agent to be able to have certain enumerated powers. Under Florida’s Durable Power of Attorney Statute, the agent gets certain enumerated powers called “super powers” only if the principal signs or initials next to those specific powers. The exercise of authority must also not be prohibited by any other agreement and must be consistent with the duties the agent has been asked to carry out as well as consistent with the principal’s estate plan.
Gifting is one of the enumerated super powers. As a result, your agent can make a gift under a power of attorney only if you have indicated it is acceptable for your agent to have this power. Your agent should only be given this authority if it is consistent with your estate plan.
There may be many reasons why you want to give an agent the authority to make a gift under power of attorney. If you plan to allow your agent to do this, it is important to talk with an experienced estate planning lawyer. A durable power of attorney is a powerful document; thus, it is best to prepare your durable power of attorney in consultation with a legal professional. Call the Lakeland estate planning lawyers at the Elder Law Firm of Clements & Wallace, P.L. today to learn more.
category: Power of Attorney & Living Wills