Durable Power of Attorney

A Power of Attorney is a legal document delegating authority from one person to another. The authorities that are delegated can be broad and general in nature, or the powers may be limited. The person creating the Power of Attorney is known as the “Principal”. The person whom the Principal selects as his or her agent is known as the “Attorney in Fact”. If the person appointed as the agent cannot serve on behalf the Principal, the Principal has the ability to name successors or multiple agents.

In total contrast to your Will which only takes effect upon your death, a Power of Attorney is in effect only while you are alive and not incapacitated. Most Powers of Attorney are Durable Powers of Attorney. The durable nature of the instrument means that the authorities delegated can continue to be exercised during any period the principal suffers incapacity. This flexibility of allowing another person to act to handle all your personal and financial affairs during temporary or long term incapacity helps avoid the necessity of guardianship. Again, no Power of Attorney allows your agent to act beyond your death. When you die, your Durable Power of Attorney dies with you.

Although Florida law recognizes two types of Durable Powers of Attorney, most are called “executory” which authorizes the agent to act immediately, with or without the mental incapacity of the principal being determined.

The Durable Power of Attorney is probably the most important estate planning document to have. Single persons as well as married couples alike should have a Durable Power of Attorney. It helps avoid the expensive process of a court ordered guardianship proceeding, which can cost thousands of dollars and take several months if family members are fighting for control. In the event of a disability and incompetency of an individual to act concerning his or her own assets, the legal authority already rests with the Attorney in Fact to handle financial matters such as paying bills, changing mailing addresses, selling property, and even applying for government assistance benefits. As an Elder Law firm, the inclusion of specialized authorities for government assistance planning is critical. The specific grant of these authorities is lacking in 9 out of 10 forms that can be gotten from the internet or legal software programs.

Powers of Attorney are not only for middle age or older adults. Let’s not forget about college students! If your college student is away at university and there’s a situation where you need to communicate with the college or pay a bill for your child over the age of 18, you have no authority to do these things just because you are the parent. You should have a Power of Attorney from your child also.