Durable Power of Attorney

Who will make decisions for you if you can no longer make them for yourself?

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.

In Florida, the Durable 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, 2011; 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 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.