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Elder Law Q&A: Why Do I Need A Durable Power Of Attorney?

Elder Law Q&A: Why Do I Need A Durable Power Of Attorney?

Question: Why do I need a Durable Power of Attorney?

Answer: A power of attorney is a legal document in which you authorize someone, usually known as your agent or attorney-in-fact, to make important financial or health care decisions for you. In Florida, this document will not be effective while you are unconscious or incapacitated unless it contains language indicating that your intent is for the authority granted to remain in effect during such periods, such as “This durable power of attorney is not terminated by subsequent incapacity of the principal except as provided in chapter 709, Florida Statutes.”

Without this document, family or friends may not be permitted to transact business, make important decisions, or conduct long term care planning for you unless a court has declared you to be incompetent and appointed a Guardian to act for you. Guardianships are very expensive and highly regulated and monitored by the court. A durable power attorney is less expensive and a less restrictive way to grant someone this authority.

Prior to October 2011 in Florida, these documents frequently granted a general power, i.e. whatever I can do, my agent can do for me. They were also often “springing,” that is the grant of authority was not effective until you became incapacitated or unconscious. However, the Florida legislature enacted Fla. Stat. §709, which prohibited both general and springing powers. Consequently, what was once a very short document may be quite lengthy depending on the number of powers granted, including but not limited to grants for banking, business, real estate, property management, investments, social media, dealing with government entities, HIPAA releases, long term care planning, qualified plans, medical decisions, and more. In addition, the grant of authority is effective the moment that you execute the document. Therefore, your agent can do anything that is in the document if he or she has a copy. Under the new statute, copies have the same effect as the original document.

Another requirement enacted by the Florida legislature is the requirement for the document to contain specific authorization within the body of the document to transact certain “super powers.” These powers usually deal with things that someone might need to do for you for long term care planning or to allow you to meet the requirements for benefits for nursing home care or other public benefits. These powers include items such as the ability to create and fund various types of trusts on your behalf, to gift property, to change beneficiary or survivorship designations, etc. If you don’t initial and indicate a grant of these powers within the body of the document, your agent will not be allowed to perform them on your behalf.

Conclusion

Don’t wait until it’s too late. Remember, in Florida, a durable power of attorney remains valid and in effect if you become unconscious or incapacitated. A power of attorney does not. Please consult with Smith Law, PLLC at (850) 641-8900 for information regarding your specific needs on a durable power of attorney. Your family will thank you for planning ahead.

Smith Law, PLLC
Smith Law, PLLC.

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