Durable Power of Attorney

Planning for the future can be difficult, but satisfying. At Medley Law Firm, we are committed to guiding you through the process. One component of a thorough estate plan is documenting a power of attorney for the event that you are no longer able to make important decisions. 

Call our law firm today to talk about whether your estate plan needs a durable power of attorney. We can walk you through the options available and help you choose the best path forward. 

What is a Power of Attorney? 

A power of attorney (POA) is a legal document that grants another person, known as the “agent” or “attorney-in-fact,” the authority to act on your behalf in various legal, financial, or personal matters. In the context of Florida law, a power of attorney can be a powerful tool that allows you to designate someone you trust to make decisions for you if you become unable to do so due to factors such as illness, disability, or absence. 

This legal instrument comes in various forms, each tailored to specific needs, ranging from general authority to limited, durable, or healthcare-related decision-making powers, ensuring that your interests and preferences are safeguarded under a variety of circumstances. Understanding the nuances of power of attorney is crucial for effective estate planning and ensuring your wishes are upheld when you need it most.

How Does a Power of Attorney Work? 

A POA operates by granting legal authority from the principal (the person creating the document) to their chosen agent or attorney-in-fact. Once the document is in effect, the agent can take actions and make decisions on behalf of the principal as stipulated in the POA. The extent of this authority depends on the type of power of attorney created, whether it’s general, limited, durable, or healthcare-related. It’s essential to note that the principal retains the right to revoke or amend the power of attorney as long as they are of sound mind and capacity. And, a power of attorney typically ceases to be effective upon the principal’s death, at which point the agent’s authority ends, and other estate planning measures, like a will or trust, come into play.

What Is a Durable Power of Attorney? 

A durable power of attorney (DPOA) is a specific type of power of attorney document that remains in effect even if the principal (the person who created the DPOA) becomes incapacitated or mentally incompetent. In other words, the authority granted to the agent or attorney-in-fact under a durable power of attorney continues to be valid and operational when the principal is unable to make decisions due to factors such as illness, disability, or cognitive decline. 

What’s the Difference Between a POA and a DPOA? 

The durability aspect is what sets a DPOA apart from a general power of attorney, which typically becomes void if the principal becomes incapacitated. Durable powers of attorney are often used in long-term financial and healthcare planning to ensure that someone trustworthy can manage the principal’s affairs and make decisions on their behalf when they are unable to do so themselves.

Types of Durable Power of Attorney

There are several different types of durable powers of attorney, each serving distinct purposes and granting specific authorities to the appointed agent. These include:

General Durable Power of Attorney (GDPOA): This is the most common type of durable power of attorney, granting the agent broad authority to manage the principal’s financial decisions and legal affairs even if the principal becomes incapacitated. It covers a wide range of financial transactions, such as banking, real estate, and business matters.

Durable Power of Attorney for Healthcare (DPOAH): Also known as a Healthcare Proxy or Medical Power of Attorney, this document specifically authorizes the agent to make healthcare decisions and medical decisions on behalf of the principal if they are unable to do so due to illness or incapacity. A durable POA includes choices regarding medical treatments, surgeries, and end-of-life care.

Durable Power of Attorney for Finances (DPOAF): While similar to a GDPOA, this document focuses solely on financial matters. It grants the agent authority to manage the principal’s financial affairs, such as paying bills, handling investments, and managing assets, in the event of the principal’s incapacity.

Limited Durable Power of Attorney: This type of DPOA grants the agent specific, limited powers for particular purposes or transactions. For example, a principal might use a limited DPOA to appoint an agent solely for the purpose of selling a specific property if they are unable to do so themselves.

Springing Durable Power of Attorney: A springing DPOA only becomes effective under certain specified conditions or triggering events, typically the incapacitation or mental incompetence of the principal. It provides an added layer of protection by ensuring that the agent’s authority is activated only when needed.

It’s crucial to consult with an experienced estate planning attorney when creating any durable power of attorney, as the specific language, powers, and requirements can vary by state, including Florida. This ensures that the document complies with state laws and meets your unique needs and preferences while providing the necessary protections for your financial and healthcare decisions in times of incapacity.

What Are the Pros and Cons of a Durable Power of Attorney?

A durable power of attorney offers several significant advantages: 

• Flexibility: You can customize a DPOA to fit your needs. 
• Peace of mind: No more wondering what will happen if you are incapacitated. 
• Cost-effective: By trusting another person with decisionmaking, it can prevent the need for costly and time-consuming court-appointed guardianship proceedings. And, it’s usually cheaper than creating a living trust. 

But there are some drawbacks: 

• Risk of abuse: There may be limited oversight, especially if there are no checks and balances in place.
• Difficulty with other parties: Some financial institutions or healthcare providers may be cautious or reluctant to accept certain DPOAs, so it’s important to ensure that the document complies with state laws and meets their specific requirements. 

Other Considerations For A DPOA: 

You may be wondering how to choose an agent. Consider the following: 

• Trustworthiness
• Competence
• Communication
• Time commitment
• Comfort discussing hard topics 

And after you have an agent in mind, you may be wondering if there are particular clauses you should make sure are in writing in your DPOA. You should consult an attorney about this question, but here are a few things to consider: 

• Clauses that define the agent’s authority clearly
• Powers, limitations, and restrictions
• Durability clause that the power of attorney remains effective even if you become incapacitated
• Successor agents
• The process for revoking the power of attorney when necessary

Don’t wait. Call Medley Law Firm today. 

Medley Law Firm here to help you work through options of setting up a power of attorney. We’re experienced in elder law and we know that estate planning is a holistic process. It’s not just as simple as writing a will. We’re ready to help you take the next step.