An out-of-state power of attorney and a Florida QIT

Valid is not the same as enough

Florida law accepts a power of attorney executed in another state if it complied with that state's law when it was signed. So the document your parent signed in Ohio or New York usually still works here.

But creating a trust is a power Florida treats with special care. Under Florida's own power of attorney law, an agent may create a trust only if the principal signed or initialed next to that specific power. Many forms from other states grant general banking and property powers and say nothing about creating trusts. Some mention trusts only to revoke or amend them. Neither is enough to create a QIT.

What we look for

Whether the document expressly authorizes the agent to create a trust for the principal, and whether the principal initialed or signed that power if the form required it. Whether the power of attorney is durable, meaning it survives the principal's incapacity. Whether it is in effect now, or springs into effect only after a doctor's letter or other condition. And whether it lets the agent manage the principal's income and bank accounts, which the monthly transfer requires.

The family's options

If the person still has capacity, the simplest fix is a new Florida durable power of attorney that expressly authorizes creating and funding a QIT. We often do this at the same time as the trust.

If the person is married, the spouse may be able to sign the QIT. The spouse still needs authority to move the applicant's income into the trust account each month, so the details matter.

If the person no longer has capacity and no document gives the needed authority, a guardianship with a court order authorizing the QIT may be the only route. That takes time, so start early: the trust must be funded in the month income arrives, and months without it can cost coverage.

Questions

Will the bank accept my out-of-state power of attorney?

A bank may ask for an opinion of counsel before accepting a power of attorney from another state. Even when the bank accepts it, the question for a QIT is whether the document gives you authority to create a trust.

My parent cannot sign anymore. What now?

Send us the power of attorney. If it does not give trust-creation authority, we will explain the remaining options, including a guardianship limited to what is needed.