| When you sign a Durable Power
of Attorney, you are giving legal authority to someone (called
your agent or attorney-in-fact) to act on your behalf. This
provides a simple way for someone to manage part or all of
your financial affairs. The use of the word "durable" coupled
with language in the document, which states it continues in
effect if you are incapacitated, assures that your agent can
act at any time.
Caution must be taken when signing a Durable Power of Attorney
because it is valid and the agent may act immediately upon
signing the document. He or she may use the document even
if you are competent! It is recommended that you keep the
original document in your possession and tell the agent where
he or she can locate the document if it is needed. The use
of the Durable Power of Attorney is not limited to times
when you are incapacitated. The Power is only revoked if
you revoke it, you are adjudicated incapacitated by the Court,
or upon your death.
An alternative to a Durable Power of Attorney is a Springing
Power of Attorney, through which you give your agent all
of the same powers over your person and property, but those
powers do not become effective until you become mentally
incapacitated. A Springing Power of Attorney is appropriate
where you do not anticipate losing mental capacity in the
immediate future, and do not anticipate the need for anyone
to manage your affairs for any other reason, such as an extended
vacation. This document allows you to name someone at the
current time in case those unlikely events occur, but without
having to worry about the agent having the broad authority
granted by a Durable Power of Attorney until the events occur.
In Florida, both the Durable and Springing Power of Attorney
must be signed in the presence of two witnesses and a non-family
Notary Public. The Durable Power of Attorney law was rewritten
in October, 1995; therefore, it is important to have a Durable
Power of Attorney signed after this date.
Keep in mind that even though your agent is required to
act in your best interest, there is no formal supervision
of your agent’s actions. It is very important to name
someone you trust completely.
Property subject to a Durable or Springing Power of Attorney
can include all real and personal property, including stocks,
bonds, mutual funds, bank accounts and other intangible personal
property.
For Medicaid planning, it is important that the Durable
Power of Attorney allow gifting. However, due to the possibility
of your agent abusing the power, it is imperative that you
discuss this with an Elder Law attorney before you include
this language in your document.
Many banks and brokerage firms require you to sign their
own Durable Power of Attorney forms. Make sure you check
with all of the holders of your assets and comply with their
requirements. |
