No one likes to think of winding up in a situation where they’re unable to make choices independently. However, a key component to effective estate planning involves setting up an attorney-in-fact who can act on your behalf in case something awful occurs.
However, many don’t even know where to begin when it comes to learning how to get power of attorney and the litany of documents involved. Fortunately, Medley Law Firm can guide you through the process, but for now, here are the basics of understanding POA and why it can be one of most significant decisions you make.
What Is a Power of Attorney?
Power of attorney is a legal document that allows you, known as the principal, to appoint someone to act on your behalf and make vital decisions if you suffer an incapacity to make them on your own. This individual you grant this power to becomes known as an attorney-in-fact, but other terms used include “agent” or “proxy.” Generally, this proxy is a trusted family member, but it can also include a broad scope of caregivers one would trust with important financial and medical matters.
For the courts to consider a power of attorney valid, it must be established that the individual giving the power did so of sound mind. Any evidence of coercion or pressure may make the legal documents invalid. This is a key reason why it’s critical to seek legal advice when you’re healthy, even if you don’t think the attorney-in-fact will need to perform their duties any time soon. It’ll establish a key timeframe you set everything up when you were mentally sound and healthy, so there are no hiccups with the proxy carrying out their duties as needed.
How a Power of Attorney Works
Through the legal documents created for a power of attorney, a binding agreement goes in place between the individual and the agent. The proxy must work in the principal’s best interest regardless of the scope. Such powers can be as broad or as limited as the principal desires, whether that’s dealing with taxes for properties the principal owns or making key medical decisions, down to the precise facilities the principal can go to.
Such broad power may seem overwhelming, but it’s typically preferable to alternatives. In the event someone doesn’t have a power of attorney established and becomes unable to pay bills or make important financial decisions, the courts may appoint a guardian or conservator to work on the principal’s behalf instead.
Unlike the standard power of attorney document, this conservator wouldn’t necessarily have to do what’s in the best interest of the principal, and other family members may have no say in what happens to their loved one. For peace of mind, it’s better for all parties involved to establish a valid power of attorney when one’s mental capacity is solid.
Different Types of POAs & Their Purposes
When it comes to managing bank accounts and potentially making real estate transactions, there are no one-size-fits-all solutions. Everyone’s needs are different, and they may even change over the course of someone’s life. As such, there are numerous types of power of attorney out there, and it’s crucial to be mindful of each one so that you know which one is right for you.
- Durable Power of Attorney: A durable POA is the most all-encompassing of these legal documents. It’s permanent unless revoked when the principal is of sound mind and can even begin immediately unless the documents state otherwise. Through these forms, the agent’s authority can include making healthcare decisions, filing tax returns, paying bills, managing an investment portfolio, and so much more.
- Limited Power of Attorney: Unlike a durable power of attorney, a limited one is far more niche in scope. The document outlines precisely what financial affairs the agent gets drawn into, such as only having authority when the principal needs to sign a legal contract in the future.
- General Power of Attorney: A general POA is broad in scope and can cover a variety of scenarios, from financial to medical. For a general power of attorney, the proxy’s powers end once the individual becomes incapacitated, which would likely limit any decision-making powers when they could be required.
- Springing Power of Attorney: In contrast to a general POA that ends when the principal becomes incapacitated, a springing POA generally takes effect when the individual becomes hospitalized. There’s some form of “trigger event” where the agent gains powers, so the documents should be incredibly clear what that event is.
- Dual Power of Attorney: Also known as joint power of attorney, this documentation has multiple individuals work on behalf of the principal. Both agents will then need to reach agreements concerning financial transactions and medical treatments.
- Financial Power of Attorney: As the name suggests, a financial POA only focuses on making money decisions. In the event the principal becomes incapacitated, the attorney-in-fact can step in to maintain properties, oversee retirement accounts, pay bills, operate a business, and invest or sell assets.
- Medical Power of Attorney: In a similar manner, a medical POA provides the principal with a healthcare proxy. This typically only takes effect once the principal is in a state in which they can no longer make medical decisions on their own. The POA begins upon entering that state and ends upon leaving it. Additionally, a medical power of attorney can lay out precisely what choices the agent should make, such as whether or not the individual wishes to receive life-saving care if their heart stops.
None of these types of power of attorney are inherently better than the other. Everyone’s situation will be different depending on whether you own a lot of property or have a history of medical issues. When in doubt, speak with an experienced estate planning attorney to receive an unbiased opinion on which power of attorney form is right for you.
How to Get a Power of Attorney
Speak with a Florida power of attorney professional before anything else. These documents can vary from one state to the next, and you want to be certain you’re covered whether you require assistance in Florida or some other state. As such, these are the basic steps for ensuring your financial matters are secure.
1. Decide Who to Give Agent Power To
Before pursuing the documentation, you should ideally have someone already in mind who you wish to be your attorney-in-fact. In the state of Florida, this individual needs to be at least 18 years old, and they should be someone you trust completely to act in your best interest. However, they should also be someone you can rely on to act appropriately in stressful situations. If you fall into a coma, this person will likely be devastated already, but they should be capable of acting rationally during an already contentious time.
2. Schedule a Meeting With an Estate Planning Attorney
A probate lawyer will be proficient in understanding all of the terminology and nuances of establishing a power of attorney in Florida. This meeting will be your time to ask questions and narrow down what type of decision-making abilities you want to give your proxy. You should discuss all of your intentions with the attorney, from financial to medical, to determine what type of documentation is best.
Many people don’t want to try to write this documentation on their own and get it notarized independently. A lawyer will ensure the language is clear and covers everything you want it to. You may overlook something if trying to write a legal document when you have no experience in that department, and this could create a lot of headaches down the line.
3. Sign the Power of Attorney Form
Once the lawyer has everything finalized, you’re ready to sign. A witness and notary public will be necessary to ensure the documentation is enforceable by law. Once you have everything signed, you’ll want to keep a physical copy somewhere secure. You’ll also want to give a copy to your proxy so that they have it on-hand should something happen.
4. Update as Needed
You may not think about estate planning when you’re young and healthy. Power of attorney is often something affiliated with elder law, but it’s a good idea to establish a document when you still have all of your mental facilities. Of course, as you become older, you can update or expand your proxy’s powers by seeing the estate planning attorney again to ensure any new additions are written and notarized adequately.
How Much Does It Cost to Obtain a Power of Attorney?
Legal fees can vary greatly depending on the extent of the documentation. In general, the cost of getting a thorough power of attorney in Florida can range from between $250 to $500. It could be higher, but it’s always important to remember potential fiduciary cost of not getting these documents in order at the right time can be much higher.
You may be able to bundle several estate planning documents together simultaneously to try to save on costs. It’ll be higher overall, but you may want to meet with a lawyer to go over power of attorney, a living will, and any Social Security questions you have all at once.
Do You Need a Lawyer to Get a Power of Attorney?
There’s little doubt you can go online to obtain all of the documents you need to establish a power of attorney in Florida. However, these are going to be generalized documents, and they may not inherently be applicable to what you may need. You can also get witnesses together and get the documents notarized, but there’s a lot that can go wrong with this process.
For example, your homemade power of attorney may not meet all state requirements, and in the event you become incapacitated, the state may not uphold your desired proxy’s wishes. There could also be technical mistakes within the document that prevents your agent from working effectively. On top of that, some cities and counties have their own specific laws for how to go about designating someone as an attorney-in-fact. You want to be certain your documentation is valid in the precise state, county, and city you reside in.
An improperly written POA also opens the proxy to legal damages. The state may find that they’ve behaved improperly even if they believe they were doing what they were told. For all parties involved, it’s often for the best to seek out a lawyer’s assistance rather than try to save a few bucks by doing it on your own.
How Long Does It Take to Get Power of Attorney?
The length of time from meeting with an estate planning attorney and having the power of attorney document go into effect can vary depending on how complicated the case is. When you initially meet with a legal professional, they should be able to provide you with a more detailed timeframe of when the POA will go into effect. This is yet another reason why it’s good to handle this sooner rather than later so that your proxy has all of their accompanying powers well in advance of something occurring.
Can You Get Power of Attorney Without Consent?
Consent is arguably the most vital component of securing a proper power of attorney. Someone cannot legally make someone their attorney-in-fact without consent. This can lead to troublesome situations where an elderly relative may already be unable to make financial and medical decisions, but they failed to put a successor agent in place. In that circumstance, there would be no way for family members to make decisions legally, which can make an already stressful situation so much worse.
If that occurs, the family members would need to seek out a judge to grant them a conservatorship or adult guardianship. This will give family members the powers that would ordinarily be granted via POA, but this takes up time and resources when time may already be of the essence.
There are numerous stories out there of elderly individuals who did not set up a power of attorney prior to a life-altering event. It becomes a stressful situation for all involved, and it’s a reminder to get this legal document when you’re still healthy and can consent.
Choose a Trusted Florida Lawyer to Help Set Up Your Power of Attorney
A valid power of attorney is one of the most important legal documents you can set up. No one wants to think of what might happen if they fall into a coma or lose their mental capacity to make important financial decisions. However, it’s always best to plan for the worst while hoping for the best.
That’s where Medley Law Firm can help. We have immense experience in numerous fields related to estate planning and elder law, including Medicaid planning, revocable living trusts, and, of course, power of attorney.
The process involves more than having someone you trust as an attorney-in-fact. You also want a lawyer you trust to walk you through the ins and outs of such a critical legal document so that your needs are met. We have a great deal of experience with Florida power of attorney documents, so speak to a legal professional today to review your options.