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What is a Durable Power of Attorney?

In Florida, a Durable Power of Attorney (DPOA) is a legal document that gives someone the authority to act on behalf of someone else in the event of the former's incapacitation. The maker of the Power of Attorney is referred to as the "principal". The principal is the individual who permits someone else to act on their behalf. Meanwhile, the recipient of the Power of Attorney is known as an "agent," sometimes called the "attorney-in-fact". A Power of Attorney (POA) can give an agent the right to do almost any legal act the principal can do. These include making health care decisions, handling financial transactions, and signing a contract or legal document on the principal behalf.

A traditional Florida Power of Attorney (POA) gets terminated if the principal becomes incapacitated in Florida. However, a Durable Power of Attorney (DPOA) is a special kind of POA that can remain in effect even if the principal becomes incapacitated. Per Florida Statute §709.2104, for a Durable Power of Attorney to remain valid for an incapacitated principal, it will be required to contain the following statement:

"This durable power of attorney is not terminated by subsequent incapacity of the principal except as provided in Florida Statutes Chapter 709".

Alternatively, the DPOA can contain similar wording indicating the principal's intention to allow the DPOA even in the event of their incapacity. Some of the legal requirements for creating a DPOA in Florida include:

  • The principal must be competent when creating and signing the DPOA document and have an understanding of what they are signing and the document's effects
  • The assigned agent (s) must be an individual who is 18 years or older or a financial institution with trust powers, a place of business in Florida, and authorized to conduct trust business in Florida.
  • The principal and two subscribing witnesses must sign the DPOA and the principal must acknowledge the DPOA document before a notary public.

Why Would You Need a Durable Power of Attorney in Florida?

A Durable Power of Attorney in Florida is a way an individual can ensure that their legal and financial affairs will be properly taken care of in the event of incapacitation. Incapacitation can occur from an illness or accident that affects an individual's ability to make necessary decisions regarding their personal affairs. For instance, old age can lead to diseases like dementia and Alzheimer which can deteriorate an individual's cognitive functioning. In such cases, having DPOA can be valuable as the ability of the affected individual to make viable decisions can deteriorate over time.

Having a Durable Power of Attorney in place eliminates the need for guardianship or conservatorship when an individual becomes incapacitated. In Florida, the guardianship and conservatorship process can be complicated, lengthy, and expensive compared to a DPOA. Other benefits of a DPOA include:

  • It provides the ability for an individual to pick and choose who will make decisions on their behalf in the event of their incapacitation, instead of leaving the decision to a court.
  • It makes the principal's intent for their affairs clear eliminating most questions about their intentions.
  • It allows the agent to protect the principal's assets.
  • It prevents allegations of financial abuse against an agent when handling the principal's financial affairs and assets.

Inversely, there are several potential risks of not having a DPOA. The opposite of most of the highlighted benefits of a DPOA are some of these risks. For instance, the incapacitation of an individual who does not have a DPOA can lead to court proceedings where a guardian or conservator would be appointed to act on their behalf. Usually, the incapacitated individual has no say on who their appointed guardian or conservator is. Although the selected person may appear to be a good candidate, they may not have the best intentions.

How to Use Durable Power of Attorney in Florida?

Per F.S §709.2108, a Durable Power of Attorney (DPOA) becomes effective when the principal signs it. However, a DPOA executed before Oct. 1, 2011, would remain valid but ineffective until the principal's incapacity. Note that a physician must certify the principal's incapacity and issue an affidavit to the fact. Upon issuance of the affidavit, the DPOA would become effective.

Before using a DPOA, agents are generally advised to review the DPOA document thoroughly to find out what authority the principal has granted them. Provided the DPOA has given the agent the authority to act on the principal's behalf, the agent can take a copy of the DPOA document to relevant third parties. These third parties may include banks, other institutions, or persons with whom the principal needs to deal. Note that some third parties may require an agent to sign a document, such as an affidavit, that states that they are acting properly within the authority granted by the DPOA. Agents are generally advised to consult with a lawyer before signing any documents, including an affidavit provided by a third party.

Nonetheless, when signing any document, the agent should clarify that they are signing on the principal's behalf. This can be done by adding the phrase "as agent for (the principal's name)" after their signature. For example, an agent named John Smith, whose principal is Jane Doe, should include "John Smith, as the agent for Jane Doe" after their signature. Doing this indicates that the document the agent signed is being signed in a representative capacity rather than personally.

Who Should Be Selected as The Agent For This Type of P of A?

A principal can select anybody to be their agent. However, to guarantee that their affairs will be adequately looked after in their absence and that their best interests are always protected, there are certain qualities to look for in an agent. These qualities include and are not limited to reliability, trustworthiness, assertiveness, willingness to serve, and level of articulation. The responsibilities the DPOA would grant the agent must also be considered.

Ideally, the principal should choose an agent with knowledge or a solid understanding of the procedures or matters over which the DPOA would grant them authority. For instance, an agent who would be responsible for making healthcare decisions should have some understanding of medical processes. In such cases, an agent does not necessarily have to be a medical professional, like a doctor or nurse. However, they should be articulate enough to ask pertinent questions about medical tests, prognoses, and potential risks and benefits of proposed treatments.

Furthermore, an agent must meet specific legal requirements under Florida's laws (specifically Florida Statute §709.2105). These requirements include:

  • An agent must be a competent person who is 18 years or older.
  • A financial institution with trust powers that has a place of business in Florida and is allowed to conduct trust business in the state also qualifies as an agent

Given the relationship between a principal and their agent, when selecting an agent, a principal should place critical emphasis on trustworthiness. A trustworthy agent always prioritizes the principal's best interests over their own. It is also essential for a principal to cultivate a good and communicative relationship with their prospective agent (s). This would aid an agent in gaining a better understanding of their principal's positions regarding their affairs.

Who Can Be an Agent?

Under Florida law, any competent person can serve as an agent provided they are 18 years or older. Most principals typically select a close friend or an immediate family member, such as their spouse or a relative, to act as an agent. In addition to individuals, a financial institution with trust powers that has a place of business in Florida and is allowed to conduct trust business in the state can also serve as a DPOA agent.

Regardless of who (an eligible individual or financial institution) a principal wishes to choose as their agent, it is essential to select a trustworthy and capable agent. Ideally, an agent should have a proven track record of honesty, reliability, and ethical behavior. Given that an agent would be acting on behalf of their principal, these characteristics are necessary in ensuring that the decisions they make will always be in the principal's best interest.

Can there be More than One Agent?

Yes. Per F.S §709.2111, a principal can designate two or more persons to act as their agents. These persons can referred to as "co-agents". They can act independently depending on what the Durable Power of Attorney (DPOA) permits. In a case where two agents are designated they can act unanimously. However, if there are three or more co-agents, they must act by majority vote. A principal can also appoint more than one successor agent. A successor agent is a substitute for a predecessor agent if the agent declines to serve, is not qualified to serve, resigns, dies, or becomes incapacitated.

There are numerous benefits to having multiple agents. These include:

  • Each agent may have different skill sets to be utilized when making decisions in different aspects of their principal affairs. For instance, one agent may have a medical background, which can come in handy when making medical decisions. Meanwhile, another agent may have experience in dealing with real estate, which would be ideal for real estate transactions taken on behalf of the principal.
  • Convenience: Having co-agents can guarantee that someone is always available to manage their principal's affairs, provided they can act independently. This can be particularly helpful in cases where one agent is unavailable due to being out of town, ill, or incapacitated for one reason or another.

Inversely, there are certain drawbacks to having multiple agents, such as:

  • If co-agents are allowed to act independently, it may lead to confusion, where one agent may be unaware of decisions taken by another.
  • Delays and conflict. When two or more agents are involved in the decision-making process, there is a greater chance that conflict may arise. Furthermore, these conflicts may result in unnecessary delays, such as expensive court proceedings to settle them.

A principal can circumvent some of the drawbacks of having multiple agents by clearly specifying the roles and responsibilities of each agent in their DPOA documents. A principal should also state how they wish their co-agents to act (independently or by majority vote).

How to get Durable Power of Attorney in Florida

Interested persons can get a Durable Power of Attorney in Florida by following the steps highlighted below:

  • Choose your prospective agent and determine the level of authority you want to grant them: Talk to your prospective agent before designating them in your DPOA to ensure they are willing and able to serve. Furthermore, any selected agent must meet Florida's legal requirements. For instance, they must be a competent person 18 years or older or a financial institution with trust powers that has a place of business in Florida and is allowed to conduct trust business in the state. It is also essential to decide on the aspects of your affairs you want your agent to handle (have authority over). These may include finances and healthcare.
  • Compose or get a Durable Power of Attorney form: A principal can consult with an attorney for assistance in composing DPOA documents. Alternatively, free DPOA form templates are accessible through some third-party websites online, which individuals can use to create DPOA documents themselves.
  • Complete the DPOA form, sign it, and have it notarized: Once a DPOA form has been completed, the principal and two witnesses must sign it and the principal must acknowledge the DPOA form before a public notary. Your agent may also need to sign the form.
  • Properly store the DPOA form and give copies to your agent (s) and other relevant third parties: A principal must provide copies of their DPOA form to their designated agent to enable them to act on their behalf when necessary. The principal must also supply copies of the DPOA form to relevant third parties, like their banks and medical offices, to inform them of its existence.

Depending on one's preference and understanding of the DPOA process, they can create their own DPOA form for free. Alternatively, one can work with an attorney to draft their DPOA form for a fee, usually between $200 to $500. Note that under F.S §709.2112, except stated otherwise on the DPOA form, a qualified DPOA agent may be entitled to compensation and reimbursement of expenses they incurred on behalf of their principal.

How to write Durable Power of Attorney in Florida

Florida laws specifically require specific information to be provided when writing a Durable Power of Attorney. These include:

  • The statement "This durable power of attorney is not terminated by subsequent incapacity of the principal except as provided in chapter 709, Florida Statutes"
  • The title "Durable Power of Attorney"
  • The principal's, their agent(s), and witnesses' full name, addresses, and signatures
  • The duties and roles of the agent (s)
  • The notary public information, such as their county of operation, the date when the DPOA document was acknowledged, the signature of the Notarial Officer, and the notary seal (if any).

Meanwhile, examples of some optional information that may be provided on a DPOA document include:

  • The principal and their agent's contact information, such as their phone number or email address.
  • Information about the agent's compensation.

When completing a DPOA form, ensure all sections are appropriately filled, and only correct information is provided. Note that providing incorrect information on a DPOA document can invalidate the DPOA.

How often must I update my Durable power of attorney?

It is generally advised to review and update your Durable Power of Attorney (DPOA) document at least every five (5) to ten (10) years. Note that whenever DPOA documents get updated, the principal must take the necessary steps to validate them, such as signing, notarizing, and giving copies to relevant parties. Florida DPOA laws may change over time, necessitating updates of DPOA documents to meet current standards. Other factors that may necessitate updates of a Power of Attorney documents include:

  • Changes in the principal's wishes, health, finances, or living situations
  • If the principal wishes to change their agent (s) for one reason or another, such as deteriorating relationships or the agent's death or incapacitation.
  • Older DPOA documents may be declined by relevant third parties such as banks and other financial institutions
  • Logistics concerns due to the relocation of an agent.

Does the agent have to Follow the Principal's Wishes in Durable power of attorney?

Yes. An agent must only act in the capacity the principal permits in their Durable Power of Attorney documents. A principal typically outlines the areas of their affairs they wish their agent (s) to handle in their DPOA. Generally, an agent's ability to make decisions on behalf of their principal is limited to those areas of their principal's affairs outlined in the DPOA document.

In Florida, if an agent misuses their authority by acting outside the scope of their principal's affairs outlined in a DPOA, they can be held civilly or criminally liable for their actions. An example of this would be if a DPOA authorizes an agent to make only financial decisions on behalf of their principal but the agent attempts to utilize the DPOA to make healthcare or business decisions. It is important to designate an agent whom you trust to act within the authority of your DPOA to avoid complications.

What decision-making power does the Durable P of A grant the agent?

A Durable P of A grants an agent decision-making power in specific aspects of their principal's affairs, which is enumerated in the DPOA document. These may include and are not limited to:

  • Real estate transactions and maintenance
  • Healthcare decisions
  • Financial transactions
  • accessing bank accounts
  • Applying for government benefits
  • Handling and signing of legal documents
  • Collection and management of retirement benefits

There are certain statutory limitations on the use of Durable Power of Attorney by an agent highlighted by F.S. §709.08(7) and other applicable laws. These include and are not limited to:

  • Voting in a public election on their principal behalf
  • Executing or revoking the principal's will
  • Serving in the principal's place as a court-appointed trustee, guardian, or trustee.

When does the Durable P of A start, and How Long Does it Last?

In Florida, a Durable P of A becomes effective as soon as the principal and their two witnesses sign the DPOA documents and a public notary acknowledges them. However, per F.S § 709.2108, a principal can assign a future date or the occurrence event or contingency that would make their DPOA effective. Furthermore, the statute also outlines that if the Durable P of A was executed before October 1, 2011, it would become effective on the conduction of the principal's incapacitation, and a licensed physician has issued an affidavit to the fact.

Generally, a principal can set the duration of their DPOA when drafting the document. A principal may also revoke the DPOA to invalidate it. However, A DPOA, by default, expires when the principal dies in Florida.

Can the Durable P of A be Revoked?

Yes. Interested persons can revoke their Durable Power of Attorney in Florida by creating a new DPOA with a statement revoking all prior DPOAs or executing a separate document expressly revoking the existing DPOA. In both cases, the document that revokes the exiting DPOA must be signed by the principal, witnessed by two witnesses, and notarized. Furthermore, it is important to notify former agents and relevant third parties of the revoked DPOA.

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