A Durable Power of Attorney Is A Key Resource In Estate Planning
A power of attorney is a legal document one (principal) signs granting authority to another (agent) to act in their place. In order for a power of attorney to be valid after the principal becomes incapacitated, the power must be durable. A durable power of attorney must contain these words: “This durable power of attorney is not terminated by subsequent incapacity of the principal except as provided in Chapter 709, Florida Statutes,” or similar words that show the principal’s intent that the authority conferred is exercisable notwithstanding the principal’s subsequent incapacity. Fla. Stat. Section 709.2104.
A power of attorney executed after October 1, 2011, is valid when executed so long as it complies with statute; and a power of attorney executed before October 1, 2011, is valid if its execution complied with statute at the time it was executed. A power of attorney terminates when the principal dies, but can also be terminated or revoked prior to death, in accordance with statute. A court may construe or enforce a power of attorney, review the agent’s conduct, terminate the agent’s authority, remove the agent, and/or grant other appropriate relief. A principal can elect that two people act as co-agents, or a successor agent(s) may be designated. The agent appointed is a fiduciary, must act in good faith and must only act within the scope of authority granted in the power of attorney. The agent appointed must act loyally for the sole benefit of the principal, and must act with the care, competence and diligence ordinarily exercised by agents in similar circumstances.
The power of attorney document itself must state specifically the powers granted to the agent, and it is recommended that each and every power stated in the document be initialed by the principal; thus acknowledging the powers he is granting to the agent.
You might ask: Why is this important to me?
In response, my question to you is: Do you want to be able to select who will make financial, legal, real estate, and business decisions on your behalf if you become incapacitated?
If your answer to my questions is “yes,” then you have answered your question as to why all of this information is important to you. There is a good chance that you will become incapacitated without much in the way of advance warning. Because you will want your financial, legal, property and business decisions to be made by someone you choose, executing a valid durable power of attorney before you become incapacitated should be very, very important to you.