The Florida Durable Power of Attorney

At some point in our lives, most of us will rely upon on a third party to make a legal or financial decision on our behalf. For example, an elder individual may rely upon a trusted family member or friend to manage his or her checking account at a local credit union. However, how does that credit union know this trusted family member or friend is authorized to make such decisions on your behalf?

What Is a Durable Power of Attorney and What Does it Do?

A durable power of attorney (“DPOA”) is a legal document that authorizes a third party (the “agent” or “attorney-in-fact”) to act on your behalf in the event you (the “principal”) become incapacitated or unable to handle your legal or financial affairs. Third parties (i.e., financial institutions, courts, etc.) rely upon this legal document as evidence that the agent has the authority to make decisions on the principal’s behalf.

A DPOA is similar to a power of attorney (“POA”) in that both are legal documents that authorize a third party to act on your behalf. However, there is a key difference. With a POA, the agent’s power to act your behalf automatically ends (is revoked) in the event you become incapacitated. With a DPOA, the agent’s powers remain in full force and effect in the event you become incapacitated or unable to make decisions yourself.

How Do You Create a Durable Power of Attorney in Florida?

In Florida, durable powers of attorney are governed by Chapter 709, Powers of Attorney and Similar Instruments. Pursuant to Chapter 709, the following are required to create a valid durable power of attorney in Florida:

  • The durable power of attorney must be signed by the principal, the agent, and two witnesses in front of a public notary. Florida Statute § 709.2105 (2);
  • The agent must be a natural person who is 18 years of age or older or a financial institution that has trust powers, has a place of business in Florida, and is authorized to conduct trust business Florida. Florida Statute § 709.2105 (1);
  • The principal cannot not be incapacitated at the time he or she signs the document. Incapacitated is defined in the statute as “the inability of an individual to take those actions necessary to obtain, administer, and dispose of real and personal property, intangible property, business property, benefits, and income.” Florida Statute § 709.2102 (7); and
  • The durable power of attorney MUST contain the following language or language of similar effect: “This durable power of attorney is not terminated by subsequent incapacity of the principal…” The language does not have to be exact, but it certainly must make it clear that the intent of the principal is for the document to be a durable power of attorney that gives the agent the authority to act on behalf of the principal even if the principal is incapacitated. Florida Statute § 709.2104.

Generally, with one exception, there is no limitation on the powers you can grant to your designated agent. Common powers include:

  • Managing financial accounts;
  • Paying bills;
  • Handling legal affairs such as insurance claims;
  • Filing income tax returns; and
  • Managing real estate.

However, with a DPOA, you cannot grant your designated agent the authority to make medical decisions on your behalf. Granting a third party the ability to make medical decisions on your behalf is controlled by a separate legal document called a “living will”. In Florida, living wills are governed by Chapter 765, of the Florida Statutes entitled Healthcare Directives.

A Durable Power of Attorney for Estate Planning

Many financial experts and estate planners suggest that a DPOA be included as part of every estate plan. No one ever knows when he or she may suddenly become incapacitated, whether due to an accident or illness. If you plan ahead, you can give someone you trust the ability to make legal and financial decisions on your behalf.

You can also make sure the agent who will act on your behalf is competent and someone you trust to always act in your best interest and in compliance with what you would want if you could still make your own decisions.

If you have a DPOA, the agent does not have to prove you are incapacitated and can immediately act on your behalf, sign financial documents and be sure your estate is preserved.

The Consequences of Becoming Incapacitated Without Having a Durable Power of Attorney

If you become “incapacitated” and do not have a DPOA, a POA will no longer be in effect. That means the agent will no longer be able to act on your behalf.

The state will step in and appoint a guardian to manage your financial affairs. This involves a court hearing, which is expensive. Your family members may suggest a certain person be appointed as guardian. The agent who had your POA may request to be appointed as your guardian. However, there are no guarantees as to what the court will decide and who it will appoint to have control of your financial and legal affairs. In some cases, courts have appointed guardians who have no connection to the family. The guardian may be someone unknown to the person who is incapacitated, and may not be someone you would have chosen if you were still capable of naming an agent and executing a DPOA.

The guardianship process is time-consuming, expensive, and exhaustive to family members. Even if your family members all agree that a certain person or financial institution should be appointed guardian, and believe it is someone you would approve of and trust to act on your behalf, guardianship proceedings are still an expensive and time-consuming process and there are no guarantees that the person of your choosing will be appointed. Further, physicians’ opinions may be required to prove incapacity. Lawyers become involved in order to represent the incapacitated person, family members, and the proposed guardian. All this can be avoided if you, as the principal, have a DPOA in place before you become incapacitated.

Recommendations

You may think that you do not have enough assets to consider a DPOA. Think again. Without a named agent to whom you have given the authority to act on your behalf, no one can access your bank account to make your car payments, pay your utility bills, arrange for payment for your health care needs, etc.

No matter the size of your estate, small or large, having a DPOA will let you rest easy. You will have the assurance that if you become incapacitated, your financial and legal affairs will be handled according to your own wishes and not according to the decisions of an unknown guardian.

Preparing a DPOA is relatively straightforward and inexpensive. LegalStandard.com.com’s experienced attorneys can help you prepare a customized durable power of attorney for $300.00.