What is a durable power of attorney?

A durable power of attorney is a potent document that is used in estate planning to assist you your needs and goals. Generally, you, the “principal”, creates the durable power of attorney by appointing an “agent” (also called an “attorney-in-fact”) that has the authority to make legal decisions. It is incredibly important to pick an agent that is reliable and honest.

In Florida, the power of attorney law requires the document to specifically spell out the authority that the agent can exercise. For instance, if power of attorney does not state that the agent can buy real estate, then the agent cannot do that. Because of this need for specificity, not all powers of attorney documents are created equal. Carefully consider whether your power of attorney addresses all the needs you may want your agent to handle for you.

Powers of attorney generally are for taking care of financial and property concerns. While it is okay to include medical decision-making in a power of attorney, we generally recommend doing that with a separate “medical power of attorney” or “designation of health care surrogate”.

So what are some benefits of having a well drafted, comprehensive power of attorney?

  • It gives you the ability to choose who will make decisions for you when you can’t, rather than a court. If you become incapacitated, your family and loved ones would otherwise have to seek court orders to have the proper authority granted through a guardianship. Family members may fight over who should have that authority. By making the choice before you are no longer able to, you remove that obstacle.
  • It prevents delays in asset protection planning. A comprehensive power of attorney should include all the powers required to do effective asset protection planning, to handle digital assets, access funds, and pay bills. And by making that authorization before any incapacity, it gives your agent immediate authority to execute your financial plan. Absent these provisions, anyone trying to help you may require court authorization first, which will cause delay and costs.
  • It allows seniors to prepare for long-term care. A comprehensive power of attorney will allow the agent to perform many tasks, such as choosing proper care providers and applying for government benefits to pay for care. The agent can immediately make these decisions without wasting time and money. Certain long term care and government benefit programs require specific authorizations in your power of attorney instrument.
  • It provides peace of mind. Taking the time to sign a power of attorney lessens the burden on family members who would otherwise have to go to court to get authority to perform basic tasks, like writing a check or arranging for home health services. Knowing that this has been taken care of in advance provides great comfort to families and loved ones.

Nobody can predict exactly what may happen in the future. That is why a comprehensive durable power of attorney is so essential – to authorize and provide those powers that may be needed. The durable power of attorney enables a trustworthy agent to do whatever needs to be done in the future. Please call us if we can be of assistance in any way or if you have questions about durable powers of attorney.

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