Florida Powers of Attorney
Portia B. Scott, J.D., L.L.M. • April 1, 2025

Myths V. Facts

Of the many documents variations of which can be found on the internet, we have Powers of Attorney (“POAs”). As is the old saying, a little bit of knowledge can be dangerous.


With this writing, we are going to explore some of the most prevalent myths about POAs which are, at best, troublesome and, at worst, catastrophic to your plans.


Myth 1: A POA strips from the person who signed it (the Principal) all authority and vests that authority in the person who receives it (the Agent). 


The nightmare I have seen are an Agent waiving the POA around, declaring “I am in charge now,” and “you have to do what I say” regardless of the wishes of the Principal. This is simply untrue. 


A POA will allow another to perform your financial duties. Typically, a POA does not require you to be unable to make informed decisions in order for the POA to be used. The POA duplicates in another person the authority you have over your finances but does not strip from you any of your rights and powers. Now, if you are declared to be incapacitated by a Judge, that would strip you of your authority and the POA could be used to fill in the gaps in your financial care, but the execution by you of a POA does nothing to your own authority.


The POA will be effective even after a Judge, if there were an Incapacity matter filed, says you are incapable of making informed decisions regarding your own finances.


Myth 2: A POA is effective after your death.


It is not. Since a POA duplicates in another person whichever financial authority you chose to give the Agent, and, since when you are dead you cannot do anything, the POA’s usefulness is over. A dead person cannot write checks and neither can his/her Agent using a POA.


In fact, it would might be considered a fraud by the Agent to use the POA after the Principal’s death; it certainly would be void once discovered.


Myth 3: An Agent gets to make the decisions about how the Principal’s money is spent.


Though generally an Agent can spend the Principal’s money, the Agent may only spend the Principal’s money on the things the Principal wants. So, if the Principal wants to send her granddaughter a $100.00 birthday gift and asks the Agent to write her a birthday card with a check in it, that is fine. However, the Agent may not decide to write the check for $1,000.00 nor to include all of the grandchildren. Especially, the Agent may not write herself a check because, she needed the money. If the Agent were to borrow money from the Principal, the Agent should back that up with an I.O.U. (a promissory note) from the Agent to the Principal and keep a record of it.


Certainly, unless there are extraordinary circumstances, the Agent cannot change title to a car or house or boat from the Principal to the Agent or ever to the Agent and Principal together without breaching her fiduciary duty to the Principal.


Myth 4: The Agent can give away some of the duties granted under a POA to another person.


The State of Florida specifically prohibits the Agent from delegating the authority under a POA. If the Agent can not do the act authorized, only the Principal can.


These are just some of the common wrong-headed beliefs regarding Powers of Attorney.  These POA can be very useful in many circumstance, but they do not grant “carte blanche” to the Agent. 


Talk to an attorney about the bounds of a POA, especially if you have been appointed and do not understand the limits on your power thereunder.


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The Deed, the Daughter, and the Paper Trail

By Portia B. Scott, J.D.,L.L.M. • February 19, 2026
For those of you who like history, consider the study and application of law. Studying history is, effectively, 90% of what we attorneys do. When there is a lawsuit, for instance, you obviously want your client to win. The methods of winning are, of course, having the facts on your side but you also need to have the law on your side or, extremely rarely, you change the law. The first question for the attorney is, "What does the applicable statute say?" followed closely by "How have other courts handled this question in the past?" These are the starting point for an attorney, once she knows (or think she knows) what has happened. Let's take an incapacity determination as an example. The worried daughter comes in after having spent some quality time with her father over the holidays. She indicates that her dad said and did some things which made her question if it is okay for him to continue to live alone. The attorney asks questions about her father, including how long has he been living alone? Has he been diagnosed with anything? How about his physical abilities, are they impaired at all? The daughter tells us that, after his wife died a few months ago, Dad suddenly spiraled downward. This may or may not be true, though it is certainly the daughter's perception. Was his wife actually covering for him for years and did such a good job no one noticed? Maybe. We learn that father has a degree in accounting and supported himself and the family with an accounting business. Now, he does not seem to know how to balance his accounts. Still, when asked, he said he did not need to write it down. "It is all up 'in the cloud' now." He needs a walker, but often forgets to use it. He has fallen twice in the last couple of months, but does not remember how long ago or that he went to the hospital, saying later, "oh, yes, but that was just the ER." He used to wear button down shirts but now only pull overs - saying that he wore a shirt and tie for too many years while he worked. But, he did mis-buttoned his shirt the one night when they went out for dinner. He cannot figure out how to turn off his phone and sometimes confuses the handset from his land-line for the remote control for the television. Specifically, the daughter met a young man who has been helping dad around the house and who says he can get insurance to pay for his help if dad will sign an "insurance" form. Dad's eyesight isn't so good, but the young man has been so helpful and he would like him to get paid from Medicare, so he signs. But, the young man won't give a copy to her father or the daughter. The daughter is concerned about that happening again, with an unscrupulous person and, perhaps, this young man. So, our first study of history is the father's own immediate past. Over the last 10 years, what has changed. For the answers to this, we need to consult with the daughter. Maybe he was always like this. Once we know that, no, this is different, the daughter decides that, because Dad has a financial Power of Attorney and a Designation of Health Care decision-maker, there is no need for a Guardian. She just needs to make sure that Father cannot do himself any financial harm, unless he understands truly what he is doing. Now, we start our next historical search. What are the standards which our elected officials over the past years (the legislature) have established for the Judges to observe. After a review of the prior Legislatures' directions on how to proceed and who may do so, we perform quick up-date to see if that statutory law has undergone any changes and, if not, the real history search begins. We need to look at the decisions prior courts have made about any special question. Does the fact that dad had not been diagnosed wth dementia prior to him signing the nice young man's "insurance authority" matter? Especially now that we have discovered it was actually a Deed to his house? We find the cases which were argued and won by people in the daughter's position. Then we find the similarities and, equally important, the differences. If our history lesson provides us with old cases, which have been approved time after time before us clearly reflecting the daughter's position, we can bring those cases to our judge's attention to be successful in our attempt to keep her father from signing away his house again, after being exploited by his illness and the young man's greed. This is but one, tiny example of how our history is part of everything we, as attorneys do, day in and day out. It emphasizes that we are history ourselves. Some day in the not-too-distant future, attorneys (or their Al assistants) will cite our very work either as an example of how things should be done or, heaven forbid!, how they should not be done.

Homestead Equity Uses for the Elderly

By Portia B. Scott, J.D., L.L.M. • September 22, 2025
For many families, the home is the single asset with the most value. I understand that financial planners do not like to include the equity in the home when making determinations of wealth, but sometimes it is worth considering. Three questions and accompanying scenarios especially come to mind for the Elder Law practitioner. First, how can a client use the equity in the home to fulfill the client's desire to age in place? Second, does the client need to spend all of the home's value before Medicaid will help when moving into long term care? Third, what, if anything, can be left by the client for the children once the client is gone? In Florida, the answers are as follow. If the client has significant equity in the client's home, a Home Equity Line of Credit ("HELOC") or a Reverse Mortgage are options to be considered. The differences between the two are that a HELOC tends to be less expensive way of accessing the equity in the home, at least initially, but does require monthly repayments to be made on the loan. So, the borrower witl need to include some repayment in the monthly household budget. The borrower has greater options about where the borrower lives. For instance, if the borrower chooses to go live in an assisted living facility, as long as the HELOC is being repaid, there is no issue. This means, among other things, the borrower could rent the property out and use the net proceeds to pay the HELOC. (There are other issues this would bring up including those regarding homestead, however.) A Reverse Mortgage, on the other hand, tends to be more expensive (typically higher interest rates and, often, origination expenses) but does not have to be paid back until the borrower dies or otherwise stops living in the home. This means that if the borrower wants to live at home, the borrower can use the equity to pay for household expenses, taxes, home health aides or companions, lawn care and any other duties the borrower can not, or maybe just does not want to, perform. Does the dient need to spend all of the home's value before Medicaid will help with long term care? Not in Florida, no. In 2025 if a single persons owns a home with less than $730,000.00 in equity and that person need Medicaid to help with long term care bills (nursing home), as long as the patient otherwise meets Medicaid requirements, the patient may keep their home. When the person passes away, the family can inherit the home without worrying about that particular asset being subject to Medicaid State Estate Recovery ("claw back"). With the right plan in place, the last, possibly most valuable asset of the nursing home patient, the client can create the legacy for the children after the patient is gone. More than $730,000.00 in equity? Maybe the client can borrow against the house and use the funds (not gifting the funds) thereby lowering the actual equity down to below $730,000.00? Buying a more expensive car, putting on that new roof the insurance company is going to require soon anyway, upgrading to impact windows, remodeling the kitchen with all new appliances and flooring throughout, taking a trip to see loved ones, paying estimated future income taxes: all of these are ways to spend that "excess" equity. For a married couple when one of them is in a nursing home and the other is not and remains in the community, this community spouse does not have to spend down any of the equity of the house the couple owns.  Finally, if a homestead is left to someone who is descended from the homeowner's grandparent (l know, it is a long way to say blood relative), the home can be left to such a person without having to pay Medicaid any of the asset the homestead represents. Further, because of the "stepped up" basis in the house, leaving a home can truly create a way of ensuring an inheritance which many people consider very valuable indeed.