Can I Have Multiple Attorneys In Fact In My Power Of Attorney?

Multiple people can be named as agent or attorney in fact under a durable power of attorney. These people would either serve concurrently with independent authority to act or concurrently with joint authority to act. While there are no legal restrictions to naming multiple people, there are practical restrictions to doing so. For example, if someone requires two people to act jointly in all financial transactions, that requirement could be construed to mean that two people must sign every check; this, however, might be logistically difficult, particularly if the two people cannot agree or are geographically located far apart from each other.

As another example, if someone were to give two people independent authority to act on their behalf, the two people might disagree and take contrary actions to one another. Ultimately, that dispute would end up in court—contrary to the creator’s wishes. The decision to name one or more people as power of attorney should be made after consulting with a lawyer who will examine the dynamics at play in an individual case.

What If My Attorney In Fact Dies Or Becomes Incapacitated?

Most durable power of attorney documents state the course of action that should be taken in the event that the attorney in fact dies or becomes incapacitated. For example, the document might state that under such circumstances, the creator’s son should be the successor agent or attorney in fact. If the attorney in fact dies or becomes incapacitated, the person named successor attorney, in fact, would have to provide the durable power of attorney document which names them as the successor, as well as proof of the death or incapacitation by way of medical records or a death certificate.

What Is Jurisdiction And Governing Law In A Power Of Attorney?

The durable power of attorney document is controlled by the state of residency at the time of signing the document. Typically, the law of the state that the creator resided in when they executed the document should apply to the administration of someone handling the durable power of attorney on their behalf. This can be a common cause of red tape, frustration, and difficulty when someone moves from one state to another. While it won’t invalidate the durable power of attorney, it may require an attorney from the new state to contact the attorney from the state in which the document was initially created in order to obtain opinion letters and become familiar with the case, and to cover actions which the new lawyer is unauthorized to take due to their jurisdiction in a different state. Because of this, it is typically best to update and change the power of attorney when someone moves to a different state.

Does It Matter Where My Power Of Attorney Is Executed?

In most situations, it does not matter where the power of attorney is executed. Most commonly, they are executed in the state where the creator will reside for at least six months. This is because most people want their investment in this legal instrument to last for a period of time, so it may not make sense to create a short-term durable power of attorney.

When Does A Durable Power Of Attorney Take Effect In Florida?

In 2011, there was a law change that required a durable power of attorney to become effective immediately. Technically speaking, this means that the person named as the agent could take an originally executed durable power of attorney document to a bank and access the creator’s funds without any legal recourse. For some people, the idea of this was discomforting because it required a great deal of transparency with the person named as the agent.

To address that problem in my office, we typically create an escrow agreement free of charge, whereby we will hold the original durable power of attorney not to be released unless the creator gives specific authorization with capacity or until we have proof that the creator is incapacitated. In other words, the fact that the new Florida power of attorney law requires these documents to take effect immediately upon signing can be alleviated by handling the original document in a particular way. Furthermore, even if it does take effect, it is immediately a concurrent power with the creator, which means that as long as the creator has mental capacity, they will have decision making authority.

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