As life changes due to retirement, a health diagnosis, alterations in family dynamics, or to plan for the unexpected at any age, a Durable Power of Attorney for Florida residents is a powerful tool to have to work for you and your family. Working with Florida attorneys experienced in Estate Planning and Elder Law can provide smoother transitions into life’s various stages.
A Florida Durable Power of Attorney is a protective legal planning document that allows you to appoint a trusted individual to act as an agent on your behalf. Although the primary purpose of a Durable Power of Attorney (also known as a DPOA or POA) is to appoint someone to make decisions for you if you are unable to make them for yourself, under Florida law, a Durable Power of Attorney is no longer “springing” (i.e. effective upon your incapacity) becomes effective immediately upon signing.
A well-written durable power of attorney in Florida removes the frustrations during overwhelming circumstances because it gives specific instructions for what an agent can and cannot do on your behalf. Although there are multiple variations of “powers of attorney” in Florida, the primary ones are the Durable Power of Attorney for finances, and a health-care power of attorney which is more commonly known as a Designation of Health Care Surrogate. These documents can be used to remove the anxiety around critical decisions in aging, which is a natural part of life, as well as address health challenges at any age.
A Durable Power of Attorney or a Designation of Health Care Surrogate are important not just for the elderly, but for any adult. It is also a good idea for your college aged children, who are legal adults, because otherwise, they might not have anyone to make legal or health-care decisions for them if they are in an accident or otherwise incapacitated.
If you work with an experienced Estate Planning lawyer at Ginsberg Shulman PL, we will guide you through the important decisions on choosing who to appoint as your agent under a Durable Power of Attorney or a Designation of Health Care Surrogate, and guide you in preparation for your future, which allows you to focus on the things that matter most.
Executing a durable power of attorney in Florida may allow an agent to accomplish financial and medical tasks and enforce decisions on your behalf as the principal, even when incapacitation occurs. A “non-durable” Power of Attorney becomes ineffective upon your incapacity. According to the Florida Statutes, the DPOA must state, “This durable power of attorney is not terminated by subsequent incapacity of the principal except as provided in Chapter 709, Florida Statutes.”
How to Obtain a Power of Attorney in Florida
It is important to execute a Durable Power of Attorney while you have full mental capacity to do so. For a DPOA to be valid, the signer, also known as the principal, must possess the mental capacity to understand the actions they are permitting another individual, known as an agent, to take on their behalf. If you delay the creation and execution of a POA, it may impose challenges if you become incapacitated by injury or disease.
Validity of Florida Durable Power of Attorney
A power of attorney is valid in Florida (§709.2105) when:
- Two witnesses observe the principal signing the Florida power of attorney in their physical presence
- It is acknowledged at the same time by a notary in their physical presence
- Each individual must sign in the physical presence of the others
- Or, if the principal is unable to sign due to physical (but not mental) disability, a notary may sign a power of attorney for a principal who is physically incapable of signing.
Who May Act as the Agent of a Florida Power of Attorney
The Florida Statutes also list the qualifications the agent must possess in order to execute a durable power of attorney. An agent should fully comprehend your wishes and the intentions you desire to carry out in the documentation. Communicating the goals and administration you, as the principal, hopes to achieve is essential. To act as an agent, the person or entity must be:
- A natural person at least 18 or older
- A financial institution possessing trust powers and having a place of business within Florida and given the authority to conduct trust business within the state.
Trusting the person or institution you choose to be the agent to work in your best interests is critical. Because they will possess the full authority to execute the power of attorney, they must also understand the significance of this duty. Acting outside of the document’s parameters can result in an agent being held liable for a breach of contract. Know the intentions of the agent and their understanding of yours well before designating them to act on your behalf.
Powers under Durable Power of Attorney
The powers granted to an agent under Durable Power of Attorney can be very broad. Think of (almost) everything that you can possibly do in your life, and those powers can be delegated to someone else.
These include:
- Access to your bank accounts to pay your bills
- Access to your other financial accounts
- The power to sell your real estate
- The power to run your businesses
- To open your mail
- To file lawsuits on your behalf
- To file your tax returns
- To apply for government benefits
- To make gifts to others
- To establish trusts
- To arrange for housing
- To run your business
Looking at the powers above shows why it is extremely important to designate someone that you trust.
A Durable Power of Attorney Can Avoid A Guardianship
While the powers granted under a DPOA are broad, they are important because they can prevent a guardianship. Although Ginsberg Shulman senior Partner Jill Ginsberg is Board Certified by the Florida Bar in Elder Law, and an expert on Guardianships, a Guardianship is something you want to avoid. A guardianship (which you can read more about here) is a process in which a court declares a person to be incapacitated and appoints a guardian over their person and property.
A guardianship is expensive, is intrusive, and you might not even know the person who the court appoints. By executing a Durable Power of Attorney, you can allows decisions to be made with your input and the awareness of those who may become responsible for your care.
Choosing a Florida Power of Attorney
Powers of attorney can accomplish varying goals for you in the short term or long range. While many powers of attorney address financial needs and assets, others can provide for your best interests when medical needs arise and you can no longer communicate your wishes. Discussing and relaying often emotional wishes in addressing your health also creates assurance and understanding for those you care about most who must make critical decisions on your behalf.
Why Choose Our Florida Power of Attorney Lawyers
Ginsberg Shulman Attorneys at Law prides itself on our hands-on approach to meeting your legal needs in Florida. With focused experience in Elder Law and Estate Planning, our Florida attorneys can guide you in making critical decisions and drafting viable documents for:
- Power of attorney
- Guardianship
- Last will and testament
- Asset Protection
- Special needs planning
- Probate and estate administration
- Business planning and business succession planning
- Trust Administration
- Irrevocable trusts
Learn more about us and how our advocacy for future planning benefits families throughout Florida, helping to navigate sensitive but pertinent topics and create a pathway forward despite life’s difficult and inevitable moments. In our work we are also capable of focusing on and protecting Florida’s most vulnerable citizens from abusive financial practices and exploitation.
Speak With a Florida Power of Attorney Lawyer
Planning for your future is important to us. Waiting to plan often creates overwhelmingly emotional and potentially contentious moments that can be guarded against. Let us help you develop the legal tools you need, such as a power of attorney, to give you peace of mind that your future, despite any challenges, is in your control.
Ginsberg Shulman Attorneys at Law offers informative but compassionate guidance, helping you set a course of action for your future. Contact us today.
