While hopefully it will not be needed, there may come a time when you might need a power of attorney or need to become one for a loved one. A power of attorneyis a written document granting authority from one individual to another by which the individual (the “principal”) appoints a person of choice (the “agent(s)” also referred to as “attorney-in-fact”) to act on the principal’s behalf regarding very specific or broad matters. The selected the agent could be any competent person 18 years of age or older (financial institutions with trust powers can also serve as agents) and should be someone the principal trusts. To be considered a legal document, the power of attorney must be signed before two witnesses and a notary republic.
Some uses of a power of attorney include giving the agent the right to sell a car, home, or other property. A power of attorney could also be used to allow the agent to access bank accounts, make health care decisions, sign a contract, work on financial transactions, or sign legal documents. Power of attorney may give an agent the ability to create trusts and make gifts.
In Florida, there are two types of powers of attorney typically used: “limited power of attorney” or “durable power of attorney”. A “limited power of attorney” allows the agent authority to conduct a specific act. Such a power could be “limited” to, for example, selling a principal’s home in another state. A “durable power of attorney” ordinarily grants the agent very broad powers to act on behalf of the principal. A power of attorney terminates upon the principal’s incapacity, their revocation or their death.
An important use for a durable power of attorney, especially among senior citizens, is to give the agent authorization to make medical treatment decisions for the principal when the principal is unable to communicate or otherwise mentally incapacitated. Even if the principal might not lack capacity, a durable power of attorney specifically for health care may enable the agent to help the principal in health care decisions.
Unlike other states, in Florida, the agent can act immediately, unless specified otherwise. A power of attorney that “springs” into action when a person becomes incapacitated is no longer recognized in Florida since 2011.
It is a good idea to include a durable power of attorney in your estate plan to help protect yourself and your family. At Thomas-McDonald Law we are experienced in estate planning and stand ready to guide you through understanding this complicated, yet necessary legal document. Contact attorney, Aislynn Thomas-McDonald, for your complimentary consultation in our Miami office at 305-928-6999.