The general concept of "power of attorney" remains fairly constant from state-to-state. Each state's statutes, however, include their own nuances, so it is important to keep in mind that the legal citations that follow are, per the student's question, specific to the State of Florida. Further, each state has its own legal requirements with regard to the recognition of powers of attorney issued by other states. With respect to Florida, powers of attorney granted an individual or group in another state are recognized by the State of Florida, but with the proviso that third parties to an arrangement or negotiation may challenge the validity of the power of attorney from another state.
"Power of attorney" is, as the phrase indicates, the granting by one party to another party the legal authority to negotiate contracts, execute a will, and engage in any number of business and personal transactions on behalf of the party assigning to the other such powers. Being designated as the power of attorney on behalf of another individual or group, therefore, represents a considerable display of trust in the party to whom the powers are being delegated. When registering for a power of attorney in Florida, then, it is required that the principal, the individual authorizing someone else to act on his or her or its' behalf, sign the requisite agreement or contract in the presence of two witnesses, and in the presence of a notary public, who can constitute one of the two witnesses.
The powers of attorney established through the process by which one party authorizes another party to act on his, her, or its' behalf are considerable, but can be limited according to the precise type of power of attorney agreement being finalized. Under a "limited power of attorney," the authorities delegated to another party are specific to a particular matter. Under a "general power of attorney," the authorities are more far-reaching, but can still be limited to those authorities specified in the agreement signed in front of the aforementioned witnesses and notary public. A "durable power of attorney" is the most powerful, as it is the express authorization to act on behalf of an individual who has become incapacitated, such as by illness. In all three of these categories, however, the powers granted to the power of attorney can be limited to specific areas of responsibility.
The part of the State of Florida legal code that addresses "powers of attorney" is Chapter 709, aptly titled "Powers of Attorney and Similar Powers." The legal definition for "powers of attorney" under Florida statute is as follows:
(9) “Power of attorney” means a writing that grants authority to an agent to act in the place of the principal, whether or not the term is used in that writing.
Specific to business, Florida statute offers several examples of how the powers of attorney function, and it is entirely in line with how such powers function with respect to the individual. As spelled out in Title XL of Chapter 709, the statute reads as follows:
709.2208 Banks and other financial institutions.—
(1) A power of attorney that includes the statement that the agent has “authority to conduct banking transactions as provided in section 709.2208(1), Florida Statutes” grants general authority to the agent to engage in the following transactions with financial institutions without additional specific enumeration in the power of attorney:
(a) Establish, continue, modify, or terminate an account or other banking arrangement with a financial institution. . .
2) A power of attorney that specifically includes the statement that the agent has “authority to conduct investment transactions as provided in section 709.2208(2), Florida Statutes” grants general authority to the agent with respect to securities held by financial institutions or broker-dealers to take the following actions without additional specific enumeration in the power of attorney:
(a) Buy, sell, and exchange investment instruments.
(b) Establish, continue, modify, or terminate an account with respect to investment instruments.
This excerpt from the State of Florida legal code indicates that the concept of "powers of attorney" with respect to business transactions functions in the same manner as for personal business. In fact, these sections apply to both personal and business matters. The difference occurs when the business is owned by multiple individuals or entities. Then, unsurprisingly, the language used in the agreement granting powers of attorney is considerably more complicated, as it must be agreed to by each of those partners. The basic concept, however, remains the same. And, it should be noted, that businesses, depending on their type, and certainly large corporations, almost always maintain in-house legal offices that already possess the authority and responsibilities implied in powers of attorney agreements. Businesses that do not have the luxury or need of in-house legal counsel usually maintain legal representation on retainer. Small businesses or individual businesspeople who find it necessary to authorize another party to act on their behalf will invariably do so employing other individuals to whom they are personally close and trust implicitly.
The concept of "powers of attorney" is not, in-and-of-itself particularly complicated. The devil, to use a platitudinous phrase, is always in the details. And, at the end of the day, there is always, or should be, a level of trust between parties such that gaps or loopholes in the agreement will be unlikely to be exploited by the party to whom the powers are granted.
Friday, November 22, 2019
Through Internet research, determine the powers created by a "general power of attorney" in your home state. Summarize the powers created by a general power of attorney and express your reasoned opinion as to whether these powers are too broad and far-reaching in a short (250-word) response that you post on the discussion board. Note: My state is Florida. The subject is (Business Law)
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