What is a Durable Power of Attorney?

August 17, 2022

A durable power of attorney is one of the legal documents generally included in a basic estate plan. It is the document wherein the person signing the document, commonly referred to as the “Principal”, appoints someone of legal age to be his or her “agent” or “attorney-in-fact” and grants certain delineated powers to that agent. Typically, these powers are related to the principal’s financial and business type affairs. The principal must have capacity to sign the power of attorney, meaning that the principal must be of “sound mind” and fully aware of the significance of the powers being provided in the document. It is termed a “durable” power of attorney because the document takes effect in Florida upon being signed and stays in effect beyond the time the principal becomes “incapacitated” and continues in effect unless and until the principal dies, the named agent dies, or the principal takes affirmative steps to revoke the power of attorney.

In the past Florida law provided for “springing powers” of attorney, meaning that the powers included within the document would “spring” to life upon the occurrence of an event named in the document, that event was usually the principal’s incapacity. For various reasons the Florida legislature did away with springing powers pf attorney, making powers of attorney effective upon signing. That said, it is imperative that you sincerely trust the person you have named as your agent.

Although a power of attorney takes effect in Florida upon signing it, it is most helpful to you as the principal, and your families, when the time arises that you are incapacitated and no longer able to manage your own affairs, often when people become elderly and start developing issues with dementia or become seriously ill. If there is no valid power of attorney signed, to be able to help the person in need, the family will most likely need to petition the court to be appointed as the incapacitated person’s guardian. This court process can be cumbersome and expensive.

Most durable powers of attorney allow the agent to interact with your financial institutions and insurance carriers, to hire and interact with a lawyer on your behalf, pay your taxes, and even buy sell tangible goods or real property. These abilities are crucial if you cannot act on your own behalf either short term or permanently.

We consult on durable powers of attorney during our free consultation. Call or message us on our website to discuss your situation and find out if this document is right for you.

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