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A Power of Attorney is an instrument that grants someone else the authority to act on behalf of another person as “attorney-in-fact.” Normally, the power of attorney is revocable and terminates when the grantor dies or becomes incapacitated.
A Durable Power of Attorney remains effective during the grantor’s incompetency but terminates when the grantor dies.
A Durable Power of Attorney can provide a flexible alternative to guardianship. The Durable Power of Attorney allows you to designate one or more persons to help manage your affairs in the event of incapacity, rather than having the court make that decision in adversarial guardianship proceedings. If there is an alternative to guardianship that sufficiently addresses your needs, the Court may not appoint a guardian.
Typically, the power grants a trusted individual authority to deal with another person’s property, such as allowing a person to deposit and withdraw funds from a bank account for specific purposes. A Power of Attorney can also authorize a person to make healthcare decisions on your behalf.
However, the powers can be much broader than authority over financial transactions and healthcare decisions. A power of attorney could specifically grant any power to another individual so long it is permitted and in compliance with Florida law, and not inconsistent with public policy in the State of Florida.
The Durable Power of Attorney takes effect immediately after it is executed. Between 2001 and 2011, Florida allowed the use of a “springing” power of attorney that was designed to take effect at some time after it is executed after a person becomes incapacitated. After October 1, 2011, Florida no longer recognizes springing powers of attorney, other than those executed prior to October 1, 2011.
If the powers within a Power of Attorney document are not specifically drafted, then those grants of authority can be ineffective. An estate planning lawyer can help you ensure the document is prepared with the correct language and ensure the effectiveness of the document.
While they are extremely useful, durable powers can be susceptible to abuse while someone is incapacitated. An estate planning lawyer can review the potential risks and benefits involved so that you can make the right decision on the person to name and the powers to include.
Given that the document is effective immediately upon execution, an estate planning lawyer can also help you decide who should hold your power of attorney document after it is executed.
To learn more about Durable Powers of Attorney and other estate planning vehicles, click here to schedule a consultation online now.
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