Planning for Incapacity and The Durable Power of Attorney

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The Durable Power of Attorney

It is safe to say that most people have experienced the situation where someone in their lives, whether a family member or a friend, becomes incapable of taking care of themselves. The individual becomes dependent on you for personal financial management and protection. You might be in the position where you want to do what is best for the individual, but you do not have the legal power to do so. This is where the Power of Attorney (“POA”) comes into place.

A POA is a grant of authority from one individual to another, by which the creator of the power (the “principal”) authorizes a person of choice (the “agent”) to act on the principal’s behalf with regard to designated matters. POA’s are governed by the Florida Power of Attorney Act (the “Act”). The Act states that an agent may only exercise authority specifically granted to the agent in the POA and any authority reasonably necessary to give effect to that express grant of specific authority.[1] Many individuals attempt to obtain these forms over the Internet, but caution should be exercised as many of these forms contain general exercises of authority and the Act requires strict compliance as to the execution of these documents. You should always consult an attorney for advice based on your specific situation.

Typically, a POA terminates at the incapacity of the principal unless the power is “durable.” A Durable Power of Attorney (“DPOA”) is created by including the following language into the document: “[t]his durable power of attorney is not terminated by subsequent incapacity of the principal except as provided in chapter 709, Florida Statutes.”[2] DPOA’s offer an attractive solution to guardianship, especially if there is a chance that the principal might become incapacitated. Florida Statues Section 744.1012 states that “[i]t is desirable to make available the least restrictive form of guardianship to assist persons who are only partially incapable of caring for their needs and that alternatives to guardianship and less restrictive means of assistance, including, but not limited to, guardian advocates, be explored before a plenary guardian is appointed.” DPOA’s (assuming that the principal has the capacity to enter into the agreement) are considered to be an alternative to Guardianship proceedings and a more cost-effective option for the parties involved.

Generally, individuals do not plan for incapacity until the situation affects them. By that time, it might be too late for any proper planning and more expensive avenues would have to be explored. DPOA’s are an essential part of any estate plan and should be contemplated by all individuals. Elderly parents should consider giving their kids a DPOA, especially as it becomes more cumbersome to manage their affairs with increased age. It is very difficult for the family and for the caregiver when a DPOA is not in place because most institutions will require the individual’s express authority or consent, this is particularly challenging when the individual’s capacity to consent is limited by their situation. The principal must always be cautious in selecting an agent, as DPOA’s are subject to abuse due to the lack of court supervision. Give us a call if you have any questions or are interested in obtaining more information; always remember to consult an attorney for any of your legal needs.

[1] Fla. Stat. § 709.2201(1).

[2] Fla. Stat. § 709.2104.