PLAN FOR FUTURE INCAPACITY
A Florida Durable Power of Attorney (DPOA) can assure that certain financial or business transactions will be handled in the way you wish them to be, even if you are not able to attend to them personally or if you become incapacitated.
Many people don’t realize that in order for someone else to have the legal authority to act for them, they must give that person a Power of Attorney. A Power of Attorney is a document you (the Principal) sign giving a person you are entrusting (the agent, or the Attorney-in-Fact) the legal authority to act on your behalf.
A Florida “Durable” Power of Attorney is the same as a Power of Attorney, with one major addition: the powers remain effective after the Principal becomes mentally or physically disabled. This durable power is added through special language written in the document.
I first went to Kathleen Flammia in 2014 for a power or attorney and found that she was able to answer all my questions. In 2016 my wife and I returned for estate planning, Kathleen and her office made this experience very easy and stress free. Thank You Kathleen
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Durable Power of Attorney FAQs
Why do you need a Durable Power of Attorney?
Durable Powers of Attorney are extremely beneficial documents, which are often created as a precautionary measure. The purpose of a Durable Power of Attorney is often to assist a person during periods of physical or mental disability or incapacity.
In Florida, without a Durable Power of Attorney in place, the court would have to appoint a Guardian to represent the disabled individual. Guardianship proceedings take time, are costly, and add to the stress already endured by the family.
Are there different types?
Yes. A Durable Power of Attorney may be general or limited. A General Durable Power of Attorney may allow your agent to do every act which may legally be done by you. A Limited Durable Power of Attorney covers specific events, like selling property or making investments.
A Florida Durable Power of Attorney becomes effective as soon as it is signed; you may revoke it any time as long as you are of sound mind. A Durable Power of Attorney is a living document and ends upon your death. In contrast, your Will or Trust takes effect upon your death.
Are all Durable Powers of Attorney created equal?
Durable Powers of Attorney are not all the same. Without the right language for your situation, your options are limited. The biggest difference we see in Durable Powers of Attorney drafted by Estate Planning Attorneys (versus those drafted by Elder Law Attorneys) is the inclusion of the powers that allow your agent to participate in Medicaid planning and Veterans Benefit Planning. That very important language would allow your agent to legally set some money aside for you if you needed to apply for Medicaid or Veterans Benefits Aid and Attendance to help pay for long-term care to keep you in your home, or help pay for an assisted living facility or a nursing home.
What do I need to know about the new Florida Durable Power of Attorney Statute?
Significant changes to the Florida Durable Power of Attorney became effective in October 2011. The major changes include:
- Springing Powers of Attorney are no longer allowed (one that would “spring” into effect when a specific event occurs, such as the disability of the Principal).
- Powers you as the Principal give to your agent or Attorney-in-Fact must be clearly stated (“blanket powers” are no longer allowed).
- The Principal must sign or initial certain powers that generally involve the authority to change the Principal’s Estate Plan, make gifts, alter beneficiary designations, and handle retirement plans.
- An existing Power of Attorney cannot be amended (it must be revoked).
- If co-agents are named, each can act independently.
My Florida Durable Power of Attorney was created before 2011. Is it still valid?
Even though Durable Powers of Attorney written prior to the new law are still valid under the new law, because these and other changes are so sweeping, it is a good idea to have your Durable Power of Attorney reviewed and updated if it was written before October 2011.
My Durable Power of Attorney was created in another state. Is it still valid in Florida?
In order to be effective in Florida, a Durable Power of Attorney must be signed by the principal, the signature must be witnessed by two people, and a notary has to notarize the document. An out-of-state Power of Attorney is valid if executed and valid in that state. If you wish to use an out-of-state Power of Attorney in Florida, you may be required to get an opinion letter from an attorney in the state where the document was drafted attesting to its validity.
How do I determine what powers my Durable Power of Attorney needs to include?
As a Florida attorney who handles Guardianship and Elder Law cases, Kathleen Flammia is very experienced in helping clients think about what they need when executing a Durable Power of Attorney. In addition, if you expect to receive money from a Trust, a pension, Social Security, or another source, she will help you understand your options, and help you make wise decisions that will benefit you and your family with long-term planning.