A durable power of attorney is designed to solve certain problems for individuals and their families – not create them.
Making rushed decisions about this without considering the full legal consequences can create confusion, delays, and conflict in the family.
If you carefully consider your options beforehand and take time to understand the powers you are giving and to whom, a durable power of attorney can be an excellent way to protect your financial interests in the future if you become incapacitated.
Following are eight important points to bear in mind before you set up your power of attorney.
1.Understand the power you are giving
Once granted, Florida law allows a durable power of attorney to be used regardless of the mental or physical health of the principal. In the event of incapacity, a durable power of attorney reduces the potential for a court-appointed guardian.
An agency relationship is created when you nominate another individual (your “attorney-in-fact” or agent) to make financial, medical, and long-term living decisions on your behalf – and this continues if you become incapacitated. The agent is duty bound to act in your best interest and has certain statutory rights and responsibilities.
A power of attorney generally grants broad, almost unlimited power to the named agent. As a result, you should only choose someone you trust completely. For financial decision making, your agent will have the same access to your bank accounts, properties, and other investments, as you do.
2.There are different types of Power of Attorney
A durable power of attorney in Florida can cover financial and medical decisions regardless of the mental or physical health of the principal.
However, there are other types of Powers of Attorney that may be appropriate under specific situations. In our practice, we recommend a Financial Durable Power of Attorney and a Medical Durable Power of Attorney because the individuals you select as your agent may be different. There are also limited powers of attorney for specific matters like selling a house or transferring the title to a car. Florida law no longer authorizes the use of a springing Financial Durable Power of Attorney that is only effective in the event of the principal’s incapacity. Today, all Financial Durable Powers of Attorney are effective when signed.
Speak to your estate planning lawyer and decide on the best type of power of attorney for the goals you are trying to accomplish.
3.Appoint someone you trust
This may seem obvious, but this decision can create problems for families. A power of attorney created 10 years ago may not allow for the fact that relationships can change over time. A person you used to trust may no longer be relevant in your life or their situation may have changed in a way that would not allow them to act responsibly on your behalf.
The person you nominate as attorney-in-fact or agent must be someone you trust. Preferably, they will also be a person the rest of your family trusts as well. For example, don’t choose your oldest child unless they are also the most responsible child in the family.
The responsibility is a considerable one that requires financial insight and attention to detail. There must be no doubt in your mind that you are selecting the right person for the job. Speak to the nominated agent beforehand and also other family members who your decision may affect.
4.Abuses are common
Abuse by nominated agents in Power of Attorney is a relatively common complaint in Florida. Sometimes this happens because the individual doesn’t understand their role as agent or they turn out not be trustworthy.
There have been instances of agents changing names on bank accounts or changing beneficiary designations with assets, especially when a second marriage is involved.
Acting outside the scope of authority granted by the Power of Attorney is a breach of the agent’s fiduciary duty. Depending on the severity of the agent’s breach, they may face both criminal and civil liability. By law, agents are accountable for their actions. Don’t create a durable power of attorney without first speaking to a qualified estate planning lawyer.
5.You can name a second agent
In Florida, you may name successor agents in the event your first nominated agent is unable, unavailable or unwilling to serve. We recommend naming a primary agent and then one or more successors. In addition, you can require that agents act together, rather than individually. Co-agents can provide greater protection for you and your assets but may also result in delays related to increased complexity.
If you name Co-agents, make sure they are on good terms and able to work together. Ultimately, the choice is yours.
- Powers of Attorney are fully revocable until you lose capacity
- The powers cease at death
- Your agent must keep accurate records
A Power of Attorney can be legally revoked or amended at any point in the future unless you lose mental capacity. Theoretically, there is no such thing as an irrevocable power of attorney. However, once granted, a Power of Attorney will remain effective for an indefinite period of time; essentially, the rest of your life unless you make a change or revoke your nomination.
Once you lose your capacity, you are no longer able to amend or revoke your Power of Attorney. This can be a problem if you have not been diligent about keeping your Power of Attorney updated and now there is a question about your capacity. The only alternative to a valid Power of Attorney is a guardianship. Keep your estate plan current so your named agents are the people you trust.
A Power of Attorney legally ends when the principal dies. Then, all financial matters are governed by other estate documents, such as your will, trusts, asset ownership and beneficiary designations.
As a result, the attorney-in-fact named in your power of attorney loses the authority to act upon your death and, instead, your nominated personal representative in your will and/or your successor Trustee in your trust will assume responsibility for the administration of your estate.
You may have selected the same person to act as your agent as well as your Personal Representative or successor Trustee, but this is not always the case. Although the responsibilities are similar, they are not identical. You should carefully select those persons who are most qualified to make financial and legal decisions on your behalf; both during your lifetime and after your death.
Agents must keep good accounting records of the financial decisions and transactions they make while acting on your behalf. This not only protects agents from accusations of wrongdoing from family members, but it is part of their fiduciary duty as an agent.
Agents should keep all receipts, disbursements, and transactions made on behalf of the principal. If a safe-deposit box is involved and the agent needs to access it, a full inventory of the box contents must be kept each time it is accessed.
Need assistance with a durable power of attorney in Florida?
Florida’s Power of Attorney laws were dramatically changed in 2011. If you have a Power of Attorney created before 2011 or you have not reviewed your Power of Attorney in the last five (5) years, now is the time to have it reviewed.
This important estate planning document is invaluable if you want to protect yourself and your family’s interests in the future and avoid a possible forced guardianship. If you need assistance with your Durable Power of Attorney, estate or elder law planning, call The Law Offices of Hoyt and Bryan, Florida’s only law firm with two Florida Bar Board Certified Specialists in Wills, Trusts and Estates and in Elder Law: (407) 977-8080.