power of attorneyPowers of Attorneys or POAs are very powerful documents that can be very useful in all types of situations.  They give broad powers that allow the agent to exercise all those powers delegated to them by the principal.  There is one very crucial piece of information that every single person needs to understand when dealing with POAs, and that is

A POWER OF ATTORNEY CAN ONLY BE USED TO BENEFIT THE PRINCIPAL…NOT THE AGENT!

Where problems often arise is when an Attorney begins taking actions that benefit the signer and not the principal. Critically, many of these acts can be unwound or undone and some of the acts are preemptively invalid. As an example, if an agent uses a power of attorney to deed a principals property to himself, it would be a conflict of interest and is invalid. Not only can the transaction be undone, but the agent can face liability.  It’s important to recognize that every single check written and every single transaction can be undone and the agent can be liable to the principal for those amounts.

HOW TO CHALLENGE THE USE OF A POWER OF ATTORNEY IN FLORIDA

If you think a power of attorney is being violated, let us work with you to work through the judicial process of a Petition to Construe a Power of Attorney:

709.2116 Judicial relief; conflicts of interests.

(1) A court may construe or enforce a power of attorney, review the agent’s conduct, terminate the agent’s authority, remove the agent, and grant other appropriate relief.

(2) The following persons may petition the court:

(a) The principal or the agent, including any nominated successor agent.
(b) A guardian, conservator, trustee, or other fiduciary acting for the principal or the principal’s estate.
(c) 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.
(d) 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.
(e) A governmental agency having regulatory authority to protect the welfare of the principal.
(f) A person asked to honor the power of attorney.
(3) In any proceeding commenced by filing a petition under this section, including, but not limited to, the unreasonable refusal of a third person to allow an agent to act pursuant to the power of attorney, and in challenges to the proper exercise of authority by the agent, the court shall award reasonable attorney fees and costs as in chancery actions.

(4) If an agent’s exercise of a power is challenged in a judicial proceeding brought by or on behalf of the principal on the grounds that the exercise of the power was affected by a conflict of interest, and evidence is presented that the agent or an affiliate of the agent had a personal interest in the exercise of the power, the agent or affiliate has the burden of proving, by clear and convincing evidence that the agent acted:

(a) Solely in the interest of the principal; or
(b) In good faith in the principal’s best interest, and the conflict of interest was expressly authorized in the power of attorney.

(5) For purposes of subsection (4):

(a) A provision authorizing an agent to engage in a transaction affected by a conflict of interest which is inserted into a power of attorney as the result of the abuse of a fiduciary or confidential relationship with the principal by the agent or the agent’s affiliate is invalid.

(b) Affiliates of an agent include:

1. The agent’s spouse;
2. The agent’s descendants, siblings, parents, or their spouses;
3. A corporation or other entity in which the agent, or a person who owns a significant interest in the agent, has an interest that might affect the agent’s best judgment;
4. A person or entity that owns a significant interest in the agent; or
5. The agent acting in a fiduciary capacity for someone other than the principal.

 

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