A Florida Durable Power of Attorney (DPOA) can assure that certain business decisions, financial transactions or health care decisions 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 for you over your real estate and finances.
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.
Why Do You Need One?
Durable Powers of Attorney are extremely beneficial documents, often done as a precautionary measure. The purpose of a DPOA 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.
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, making investments, or making health care decisions.
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. The DPOA is a living document and ends upon your death. In contrast, your Will is the document that takes effect upon your death.
Not All Durable Powers of Attorney are Created Equal
The language in each person’s DPOA is not the same. Without the right language for your situation, your options are limited. The biggest difference I 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.
That very important language would allow your agent to legally set some money aside for you if you needed to apply for Medicaid 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.
New Florida Durable Power of Attorney Statute
Significant changes to the Florida DPOA 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
Good Time to Review Your Florida Durable Power of Attorney
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 DPOA reviewed and updated if it was written before October 2011.
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. However, you may be required to get an opinion letter from an attorney is said state attesting to the validity of the out-of-state Power of Attorney if you wish to use it in Florida.
As a Florida attorney who handles probate and elder law cases, I am very experienced in helping my 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 other source, I will help you understand your options, and help you make wise decisions that will benefit you and your family with long-term planning.
I realize just how important your questions are, and I never underestimate a client’s needs. I welcome your call to discuss Durable Power of Attorney and all other estate planning concerns.