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. Merely being a person’s parent, spouse, or adult child does not give you the authority to act on their behalf if they become incapacitated.
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.
You have control over how much power to give to your agent. If you wish your agent to have the broadest powers available under the law, you may give this to him/her. However, if you only want him/her to have certain powers, you can specify which ones. For example, you may trust one child to make decisions for you related to your personal bank account, but may trust another child to make real estate investment decisions. Or perhaps you trust a sibling to make any and all decisions for you if you become incapacitated. It is important to note that recently, Florida law was changed and the state no longer recognizes “springing” powers of attorney, those that come into existence after the agent becomes incapacitated. Instead, as soon as a power of attorney (durable or not) is signed, it becomes effective. 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. 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. This 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.
DPOAs are also one of the most popular documents found in legal software such as Legal Zoom. However, these are often times worded or executed in such a way that the principal’s wishes are not respected when the time comes to use the document. It may seem like a simple document, but especially with the sweeping changes in the law that took effect in 2011, it is best to have your DPOA either drafted or at least reviewed by an experienced attorney who specializes in estate planning, and preferably elder law. It is far less expensive than the cost of later working with a DPOA that is not honored by a bank, title company, hospital, broker, or court.