A durable power of attorney is one of the common types of powers of attorney in Florida. It’s a legal estate planning document in which you (the principal) give authority to another person (an agent) to make decisions on your behalf under specific circumstances. The document's effective date is when you become ill or disabled and can no longer act or decide on your behalf. The powers granted in a durable POA apply to your current assets and those you acquire after the effective date of the POA. Ordinarily, the document terminates upon your demise, but you can end it earlier under specific statutory provisions or your own terms. Consult skilled civil law attorneys in Florida for more insights into creating a durable POA to protect your rights.
Who Can Create a Durable Power of Attorney in Florida?
Florida law allows anyone 18 years or older to create a durable POA as long as they understand the legal implications of the document. They must be of sound mind to understand the implications of granting authority to the agent. Estate planning attorneys in Florida recommend updating the document every ten years to reflect any changes. If you lack the mental capacity to create the document, its execution may be invalid. If you suffered an illness that affected your mental health in the past, it may be recommendable to consult a doctor to determine whether you have the legal capacity to create a durable POA.
Creation and Execution Requirements of a Florida POA
In choosing an agent when creating a POA, there are specific qualifications you must look out for according to Section 709.2105 of the Florida Statutes: The individual must be 18 years or older If you choose a financial institution as your agent, ensure it has trust powers, a place of business in Florida, and is authorized to conduct business locally. The agent should be someone you can trust to conduct your affairs transparently. Choose someone with a general understanding of your intent and wishes While the agent may be liable for breach of fiduciary duty or acting outside the scope of the document, you don’t want to take the risk with someone or an institution you can’t trust. Ensure you communicate your goals clearly and how you would like your property to be administered. For a durable POA to be valid, you and the agent must sign the document in each other's presence and the physical presence of two witnesses. A notary must also acknowledge the document. Your Florida estate planning lawyers can oversee the process to protect your rights.
What Are the Agent’s Duties Under a Durable POA?
Your agent must always act within the scope of the authority you grant under the POA, given that your relationship is fiduciary. They must act in good faith and not contrary to your reasonable expectations and good faith. Some of the rights you may grant your agent include the following: Making healthcare decisions, including continuing or stopping medical treatments Purchasing life insurance policies on your behalf The right to open bank accounts and manage your financial affairs The right to make financial decisions, such as investment and business-related decisions The right to receive some forms of income on your behalf Deciding on long-term living arrangements concerning your medical care Selecting and hiring doctors and caregivers Filing lawsuits on your behalf and signing any legal documents Your agent doesn’t have the power to transfer your assets to their name to avoid probate upon your demise. They also won’t be able to dispose of any property unless you give them the power to make gifts. Even so, you can limit the contributions and to whom the agents can make gifts.
What Are the Limitations of a Durable Power of Attorney?
A power of attorney is a legal document with robust legal rights bestowed to the agent to enable them to manage the affairs of the principal. However, estate planning lawyers in Florida mention that it has certain limitations. It's essential to be aware of them as you incorporate the tool into your estate planning goals: The POA can’t transfer responsibility to another agent at any time The authority given to an agent ceases when you die, and the POA can’t make financial decisions on your behalf. The executor of the estate takes over. The POA can't distribute your estate to the beneficiaries or transfer assets after your demise. The POA can't change or validate your Will or other estate planning documents. The POA can’t use your assets or money as their own You can’t nominate a POA unless you’re of sound body and mind Your appointed agent can’t make decisions before the document comes into effect with respect to the conditions you outlined The agent can’t act outside of your interests The POA can’t take more compensation than what is outlined in the POA agreement.
An Experienced Estate Planning Lawyer Overseeing the Creation and Execution of Your Power of Attorney
Having a durable power of attorney as one of your estate planning tools has several benefits. Your agent can continue running your affairs if you become incapacitated and can no longer act for yourself. The document is easy and economical to create and can help prevent the costly court process of appointing a conservator if you become incapacitated. Before creating a power of attorney, it’s advisable to consult experienced civil law attorneys in Florida. They can provide an overview and in-depth insights into the legal implications of estate planning documents. They can also help you create the documents to avoid mistakes that could invalidate them. The Dellutri Law Group has knowledgeable estate planning attorneys who can guide you. Call us at 800-391-4337 to schedule a consultation.