Power of Attorney Abuse in Florida: Agent Duties and Remedies

A power of attorney gives an agent legal authority over the principal's money, property, and financial affairs. Used properly, it lets a trusted person step in when the principal is ill, incapacitated, or unavailable. Used improperly, it becomes a tool for theft. Florida's Power of Attorney Act does two things that matter here: it spells out exactly what an agent must do, and it gives victims a direct path into court to stop the agent and get the money back.

What F.S. 709.2114 Requires of Every Florida Agent

Under F.S. 709.2114, an agent under a Florida power of attorney is a fiduciary with concrete statutory duties. The agent must:

• Act only within the authority granted in the power of attorney document. Anything beyond the written grant is unauthorized.
• Act in good faith, and not act contrary to the principal's known reasonable expectations or the principal's best interest.
• Preserve the principal's estate plan, to the extent doing so is consistent with the principal's best interest. An agent who quietly redirects assets away from the beneficiaries the principal chose is violating this duty.
• Not improperly delegate the authority the principal placed in the agent personally.
• Keep records of all transactions made on the principal's behalf, including a record of any access to the principal's safe-deposit box.

The record-keeping duty is often the first pressure point in an abuse case. An agent who "can't produce" bank records or receipts is not merely disorganized — the agent is in breach of F.S. 709.2114, and that failure itself supports court action.

Common Forms of Power of Attorney Abuse

Certain patterns appear repeatedly in Florida cases:

• Unauthorized transfers. The agent moves money from the principal's accounts into the agent's own accounts or to third parties who were never intended to benefit.
• Self-dealing. The agent makes loans to himself, buys the principal's property at below-market value, or directs the principal's opportunities to himself.
• Gifts to the agent or the agent's family that the document does not authorize.
• Real estate transfers putting the principal's property into the agent's name or an entity the agent controls.
• Changed beneficiary designations on life insurance, retirement accounts, or payable-on-death accounts — a direct assault on the estate plan F.S. 709.2114 requires the agent to preserve.
• Refusal to account, in violation of the agent's statutory duty to keep records of all transactions.

Going to Court: F.S. 709.2116

You do not have to wait for the principal to die, or for a prosecutor to act. Under F.S. 709.2116, a court may construe or enforce the power of attorney, review the agent's conduct, terminate the agent's authority, and remove the agent entirely.

The statute also opens the courthouse door to a broad list of petitioners — not just the principal. Those who may seek judicial relief include:

• The principal or the agent
• A guardian of the principal
• A trustee
• A person authorized to make health care decisions for the principal
• Any other interested person who demonstrates a concern for the principal's welfare
• Governmental or regulatory agencies
• A person asked to honor the power of attorney, such as a bank

In practice, this means a worried adult child, sibling, or caregiver who can show a welfare concern can petition the court to review what the agent has been doing, compel an accounting of the records F.S. 709.2114 required the agent to keep, and suspend or remove the agent while the abuse is investigated.

Attorney Fees Under F.S. 709.2116(3)

Cost is often what stops families from acting. Florida addressed that directly: under F.S. 709.2116(3), the court shall award reasonable attorney fees and costs in proceedings challenging an agent's conduct — including proceedings arising from an unreasonable refusal to honor the power of attorney. This fee provision changes the settlement dynamic. An agent who has been looting accounts faces not only removal and repayment, but the other side's legal fees as well.

What the Agent Must Pay Back: F.S. 709.2117

Under F.S. 709.2117, an agent who violates the Power of Attorney Act must restore the principal's property to the value it would have had if the violation had never occurred. That is a make-whole standard: if the agent's misconduct cost the principal appreciation, income, or opportunity, the restoration obligation reflects it. The statute also requires the agent to reimburse attorney fees paid to defend the agent's actions — the agent cannot loot the accounts and then spend what remains defending the looting.

Courts have additional equitable tools to make that recovery real. Where the agent has moved the principal's assets into the agent's own name, the court can impose a constructive trust on the property and order its return. Misappropriated funds can be traced through multiple accounts and recovered through a recovery of estate assets action, and the misconduct itself supports a claim for breach of fiduciary duty. Serious exploitation of an elderly or disabled principal can also be prosecuted criminally as a felony, and victims should report it to law enforcement — but a criminal case is no substitute for a civil action, because restitution ordered at sentencing rarely covers the full loss and the civil burden of proof is lower.

When the Power of Attorney Ends: F.S. 709.2109

Under F.S. 709.2109, a power of attorney terminates on the principal's death, on revocation, on an adjudication of the principal's incapacity where the power is not durable, and in the other circumstances listed in the statute. Two practical points follow:

• A principal with capacity can revoke at any time. The revocation should be in writing, delivered to the agent, and — if the original power of attorney was recorded with the county clerk — recorded as well. Banks, brokerage firms, and title companies dealing with the agent should be notified directly, because a third party may continue honoring the agent's transactions in good faith until it has actual notice of the revocation.
• Authority ends at death. An agent who keeps transacting after the principal dies is acting without any authority at all, and every post-death transaction is subject to challenge and recovery.

If the principal lacks capacity and the abuse is ongoing, an interested person can petition under F.S. 709.2116 for the court to terminate the agent's authority and remove the agent, rather than waiting for a guardianship to be established.

How an Estate Litigation Attorney Can Help

Power of attorney abuse cases require fast investigation, forensic review of financial records, and litigation that uses the statutes above to full effect. An experienced estate litigation attorney can:

• Petition under F.S. 709.2116 to review the agent's conduct, suspend the agent's authority, and remove the agent
• Compel production of the transaction records F.S. 709.2114 required the agent to keep
• Trace misappropriated funds and pursue recovery of estate assets
• Impose constructive trusts on wrongfully transferred property
• Enforce the make-whole restoration and fee-reimbursement remedies of F.S. 709.2117
• Recover attorney fees and costs under F.S. 709.2116(3)
• Pursue damages for breach of fiduciary duty and coordinate with law enforcement where criminal exploitation is involved

Speed matters. Evidence disappears, accounts get drained, and property gets retitled. Early court intervention — freezing accounts and suspending the agent — is often the difference between full recovery and permanent loss.

Contact a Florida Power of Attorney Abuse Attorney

The Law Offices of Albert Goodwin, PA represents principals, family members, and other interested persons in power of attorney abuse cases throughout Florida. If an agent has taken advantage of you or someone you love, we can move quickly to stop the abuse, remove the agent, and recover what was taken. Contact us for a consultation.