Does My Attorney In Fact Have Unlimited Power?

Attorney Kellen Bryant explains how the powers granted to your attorney-in-fact are defined and limited by your durable power of attorney document.

One of the most important questions people have about durable powers of attorney is whether their attorney-in-fact (agent) will have unlimited power over their affairs. Understanding the scope and limitations of these powers is crucial for creating an effective yet secure power of attorney.

Powers Are Limited to What’s in the Document

The powers afforded to an attorney-in-fact are limited to what is set forth in the legal document that a creator signs.

This is the fundamental principle governing power of attorney authority:

• No inherent powers – Agents only have what you specifically grant
• Document-specific authority – Each power of attorney is unique
• Written authorization required – Powers must be clearly stated
• No assumption of authority – If it’s not written, they can’t do it

How Power of Attorney Documents Have Evolved

The Old Days: Simple but Broad

In years past, a durable power of attorney document simply stated that the person named as the agent could do anything with regard to financial matters, which gave attorneys-in-fact unlimited power in that regard.

These older documents were:

• Very brief – Often just one page
• Broadly worded – “Do anything I could do”
• All-encompassing – No specific limitations
• Easy to abuse – Few restrictions on agent authority

Legal Changes Requiring More Detail

However, new versions of the power of attorney statute require much more specificity with respect to the powers that are granted.

This evolution has significantly changed power of attorney documents:

• Detailed enumeration of specific powers
• Clear limitations on agent authority
• Better protection for the principal
• Reduced potential for abuse

The Growth in Document Length

The legal changes have dramatically increased the length of these documents:

Document Evolution Timeline

This turned a one-page durable power of attorney into a four to six-page durable power of attorney. The legal changes have resulted in a 14 to 30-page durable power of attorney document in the last 10 years.

You Can Limit Your Agent’s Powers

If someone does not want the attorney-in-fact to have unlimited power, which is only sometimes recommended, then they can curtail the powers afforded to the attorney-in-fact.

Options for limiting powers include:

• Excluding specific authorities you don’t want to grant
• Adding conditions or restrictions on certain powers
• Requiring consultation with others for major decisions
• Setting dollar limits on certain transactions
• Time limitations on specific powers

Florida’s “Superpowers” Requirement

In Florida, there are certain powers referred to as “superpowers” that specifically require the creator to initial in writing.

What Are Superpowers?

These powers can give an attorney-in-fact the power to change beneficiaries, make gifts, create trusts, sign disclaimers, etc.

Florida’s superpowers typically include:

• Change beneficiary designations on accounts and policies
• Make gifts to themselves or others
• Create, modify, or revoke trusts
• Sign disclaimers of inheritance rights
• Transfer assets to trusts
• Make decisions about homestead property
• Access digital assets

Why Specific Initials Are Required

The initial requirement ensures:

• Conscious decision-making – You must specifically consider each power
• Clear intent – No ambiguity about what you authorized
• Protection against abuse – Agents can’t claim powers you didn’t specifically grant
• Legal clarity – Courts and institutions know exactly what you intended

The Problem with Too Few Powers

The problem with not having an unlimited power of attorney, or not having many powers specifically laid out, is that the attorney might be unable to take action.

Real-World Consequences

Limited powers can create serious problems:

Retirement Account Issues

For example, a durable power of attorney document might not give an agent authority to take a required minimum distribution from a retirement plan, that would result in taxation.

• IRS penalties for missed required distributions
• Unnecessary tax consequences
• Inability to manage retirement accounts effectively

Insurance Policy Problems

Or it may not allow for the surrender or change of owner of a life insurance policy, which could have legal effects with Medicaid asset protection of that life insurance policy.

• Medicaid planning complications
• Inability to optimize asset protection strategies
• Lost opportunities for financial planning

Other Common Limitations That Create Problems

• Real estate transactions – Can’t sell property when needed
• Business decisions – Unable to manage business interests
• Investment changes – Can’t adapt to market conditions
• Estate planning adjustments – Unable to modify strategies as circumstances change

Finding the Right Balance

Striking a balance between giving an unlimited power of attorney versus curtailing and restricting the powers of the agent requires counsel and a careful selection of the people named as agents or attorneys-in-fact.

Factors to Consider

• Trustworthiness of your agent – How much do you trust this person?
• Complexity of your affairs – More complex situations may require broader powers
• Family dynamics – Potential for disagreement or conflict
• Your specific concerns – What are you most worried about?
• Future planning needs – What flexibility might be required?

Strategies for Balance

• Grant broad powers to highly trusted agents
• Include safeguards like consultation requirements
• Use successor agents with different power levels
• Regular review and updates as circumstances change
• Clear communication with your agents about your wishes

Professional Guidance Is Essential

Given the complexity of modern power of attorney documents and the serious consequences of both too much and too little authority, professional legal guidance is crucial:

• Understanding your options – What powers are available and appropriate
• Assessing your needs – What authority your agent will likely need
• Evaluating risks – Balancing protection with functionality
• Proper drafting – Ensuring the document accomplishes your goals
• Regular updates – Keeping pace with legal changes

The Bottom Line

Your attorney-in-fact does not have unlimited power unless you specifically grant it in your durable power of attorney document. Modern power of attorney documents require careful consideration of which specific powers to grant, with special attention to Florida’s “superpowers” that require your initials.

The key is finding the right balance between giving your agent enough authority to help you effectively while protecting against potential abuse. This balance depends on your specific circumstances, the trustworthiness of your chosen agent, and your particular concerns and goals.

Put your mind at ease and make an appointment to meet with the Berg Bryant Elder Law Group in Jacksonville, Florida today to discuss the appropriate powers for your durable power of attorney.

This information is provided by Attorney Kellen Bryant. For personalized guidance about structuring the powers in your durable power of attorney document, consult with a qualified estate planning attorney.