Understanding Why This Is a Non-Delegable Act

One of the most common misconceptions I see in estate-related signings is the belief that a Power of Attorney (POA) allows an agent—also called an attorney-in-fact—to sign and document, one such document being, a last will and testament on behalf of someone else.

Let’s clear this up.

Under Florida law, an attorney-in-fact cannot sign, create, or alter a will for the principal. Creating a will is considered a deeply personal, non-delegable act that requires testamentary capacity.

This distinction matters more than many people realize.

The Legal Foundation in Florida

The Florida Bar and the Florida Statutes make it clear that a Power of Attorney grants authority over matters during the principal’s lifetime—not after death.

Florida’s probate laws (see Florida Legislature via Online Sunshine) require that a will reflect the personal intent of the testator (the person making the will).

The authority granted in a POA may include:

• Managing bank accounts

• Buying or selling property

• Handling financial affairs

• Making healthcare decisions

But it does not include:

• Drafting a will

• Changing testamentary distributions

• Deciding who inherits assets

That authority ends at death—and it never includes determining how assets pass upon death.

Why Signing a Will Is Non-Delegable

A will represents a person’s final, personal instructions regarding:

• Who inherits their property

• Who serves as personal representative

• Guardianship decisions

• Specific distributions

Because of this, the law treats creating and signing a will as an act that requires:

These are not decisions someone else can legally make—even with broad POA language.

What About Physical Limitations?

Here is where people get confused.

In some jurisdictions, if a testator:

• Has full mental capacity

• Has already decided the contents of the will

• Is physically unable to sign

Another person may sign at the testator’s direction and in their presence. See FLA Sta 117.05 (14) (a-e) for instructions on this.

But that person is not acting under a Power of Attorney. They are simply assisting with the physical act of signing, while the testator remains mentally present and directing the process.

That is very different from an attorney-in-fact deciding or signing independently.

What a POA Can Do in Estate Planning

A properly drafted POA may allow an agent to:

• Create or fund a trust (if specifically authorized)

• Manage or transfer property during life

• Handle tax matters

• Conduct financial transactions

However, it cannot dictate how assets are distributed upon death. That authority belongs solely to the testator through a valid will.

Why This Matters for Notaries

As a notary, you may encounter:

• A family member attempting to sign a will using a POA

• An agent presenting POA documents for testamentary changes

• Confusion between a will and trust administration

This is a moment where understanding the law protects everyone involved.

If you are asked to notarize something involving a will and a POA, pause and verify the legal authority. When in doubt, refer the parties to a qualified estate planning attorney.

Even The Florida Bar consistently advises consulting licensed counsel because estate authority is strictly governed by state law.

Final Thought

A Power of Attorney is powerful—but it is not unlimited.

Those two legal instruments serve entirely different purposes.

Understanding that distinction protects families, preserves testamentary intent, and keeps notaries compliant.

And in this profession, compliance is everything.