A durable power of attorney (POA) stands as a crucial legal instrument, granting you the ability to designate an individual to oversee your financial and legal matters in the event of your incapacitation. But what exactly does “durable” mean? And how does a durable power of attorney work in Florida?
In this guide, we’ll answer some of the most frequently asked questions about durable powers of attorney in Florida. Read on for key information on creating, using, and revoking this critical estate planning document.
What is a Durable Power of Attorney (POA)?
A durable power of attorney is a legal document that authorizes an individual, known as the attorney-in-fact, to act on your behalf in the event you become incapacitated. This legal instrument is a critical component of any comprehensive estate plan, allowing the agent to make decisions about the principal’s financial affairs, legal matters, and, in some cases, health care decisions.
In Florida, the durable POA remains in effect even if the principal becomes incapacitated, hence the term “durable.” This differentiates it from a general power of attorney, which we’ll discuss in the next section.
What is the Difference Between a Durable Power of Attorney (DPOA) and Other Types of Powers of Attorney?
There are different types of powers of attorney, each serving a unique purpose:
- General Power of Attorney: This form of Power of Attorney (POA) grants your attorney-in-fact the authority to manage your financial matters. However, it becomes void if you become incapacitated.
- Durable Power of Attorney (DPOA): As mentioned earlier, a DPOA allows your agent to act even if you’re incapacitated. This includes making financial decisions and dealing with other legal matters.
- Healthcare Power of Attorney: This type of POA, also known as a power of attorney for health or attorney for health care, allows your agent to make health care decisions on your behalf, including the type of medical treatments you want if you become unable to communicate or make decisions yourself.
Understanding Durable vs. Non-Durable Powers of Attorney in Florida
There are two main types of powers of attorney in Florida:
- Non-durable POA – This provides authority to an “attorney-in-fact” to make decisions on your behalf, but it becomes invalid if you become incapacitated.
- Durable POA – This remains valid even if you become mentally incapacitated. The word “durable” means it is still enforceable.
The key difference is that a non-durable POA terminates if you can no longer make your own decisions, while a durable POA continues without interruption.
This makes durable POAs essential for incapacity planning in Florida. They allow your appointed agent to keep managing your affairs if you suffer an illness, injury, or disability.
Why Appoint a Durable POA in Florida?
There are two big reasons to create a durable POA in Florida:
- Avoid guardianship – Without a durable POA, your family would need court-ordered guardianship to make decisions for you if you lose capacity. This takes time and money in legal fees. A durable POA avoids this.
- Choose your agent – With a durable POA, you select who will manage your affairs if you can’t. This ensures someone you trust – not the courts – will be in charge.
Types of Durable POAs in Florida
There are two main durable POA documents in Florida:
Durable Financial Power of Attorney
This covers financial and legal decisions like:
- Managing bank accounts and investments
- Paying bills
- Buying/selling property
- Filing taxes
- Accessing safety deposit boxes
Durable Healthcare Power of Attorney
This covers medical decisions like:
- Accessing medical records
- Choosing doctors
- Consenting to treatment
- Managing medications
- Deciding on end-of-life care
How Does a Durable POA Work in Florida?
Florida law allows anyone over 18 to sign a durable power of attorney document. It must be signed and witnessed by two people to be legally valid.
When you create a DPOA, you name a trusted friend, adviser, or relative as your “attorney-in-fact.” This individual possesses the authority to promptly exercise legal and financial judgment on your behalf, either in the event of your incapacity or without delay. The POA document states exactly which powers are granted to your agent.
Some key powers your attorney-in-fact may exercise include:
- Managing real estate and other property
- Operating your business interests
- Buying, selling, and signing documents for your assets
- Arranging care in a nursing home or memory care facility
- Filing taxes
- Accessing financial accounts
- Paying bills from your accounts
Your agent has a fiduciary duty to act in your best interest. Florida law makes it a felony for an agent to abuse their powers under a durable POA.
How to Create a Durable Power of Attorney?
To create a durable power of attorney, you’ll need to follow these steps:
- Choose an Attorney-in-Fact: This should be someone you trust, as they will have the power to make decisions on your behalf.
- Define the Powers: Specify what powers your attorney-in-fact will have. This could range from handling financial matters to making health care decisions.
- Draft the Document: You can use a Florida power of attorney form, but it’s advisable to consult with an estate planning attorney to ensure that the document meets your specific needs and complies with state law.
- Sign and Notarize: Once the document is drafted, sign it in the presence of two witnesses and have it notarized.
Terminating a Durable POA in Florida
To revoke a durable POA, you must:
- Be of sound mind – You must have the mental capacity to revoke POA documents.
- Revoke in writing – Generally, this is done by stating, “I hereby revoke my durable power of attorney” in a signed and notarized letter. Send copies to your agents and any institutions they’ve acted with.
A durable POA also automatically terminates when the principal (person granting the power) passes away. At that time, the estate will be managed under your last will and testament by your executor (if you have one).
Who Can Override a Durable POA in Florida?
In Florida, a court may be able to terminate a durable POA if evidence shows the agent is abusing their authority or acting against your best interests. A judge can appoint a guardian to take over managing your affairs.
If you didn’t authorize someone to revoke your POA, a family member’s only recourse is getting a court order. The court will require medical evidence you lack capacity before intervening. This can be a lengthy process, so authorize someone you trust to monitor your agent if you have any doubts.
Make a Durable POA in Florida with Legal Help
A durable power of attorney can help protect you and your loved ones in case of a medical crisis that leaves you unable to make decisions about your legal, financial, and healthcare needs. But POA laws can be complex, so it’s wise to work with a knowledgeable Florida estate planning attorney to properly create this important document.
Stivers Law in Coral Gables has dedicated lawyers who can counsel you on designing a customized, durable POA that meets your family’s unique needs. They have deep experience with estate planning for Florida residents. Contact their office at https://miamiwealthplanning.com/ today/
