What is a Durable Power of Attorney?
At Barreau Legal, PLLC, it is common to run into clients who believe that estate planning only deals with how to pass property along to the next generation after someone’s death. This would be an accurate definition of estate planning and the goals which can be accomplished through it. However, many people often oversee the fact that estate planning is much more than dealing with matters at someone’s death – it also deals with safeguarding and planning for big life events. For instance, documents such as a Durable Power of Attorney help to ensure that certain aspects of your life can continue should you be unable to do so for yourself. This article will discuss what a Durable Power of Attorney and key pieces of information you should know when you meet with you Florida estate planning attorney.
What is a Durable Power of Attorney?
A Durable Power of Attorney is a document which grants a third party the authority to make financial decisions on your behalf. It is called “durable” because it is meant to survive even if you become incapacitated at some point in the future. It is vitally important that whomever you choose to serve under your Durable Power of Attorney is someone that you trust. This is because someone granted authority under such a document could potentially have a very broad range of powers to handle your financial affairs, whether that be to access your bank accounts, sign documentation on your behalf, run your business, or even purchase or sell property on your behalf.
Why have a Durable Power of Attorney in place?
Having a Durable Power of Attorney in place is very important because it gives automatic authority under Florida law for someone to manage affairs on your behalf. The key motivator for having a Durable Power of Attorney is that you will have someone to handle your affairs even if you cannot handle them for yourself as a result of, say, dementia or other mental or physical ailments. Here, it is important to consider the alternative. For instance, what would happen if you were to become incapacitated and not have a valid Durable Power of Attorney in place? Generally speaking, if you become incapacitated without a valid Durable Power of Attorney in place, there will likely be no way that anyone could access your bank accounts, discuss issues with your financial institutions, or do anything on your behalf – assuming no other planning strategies had already been implemented. In this instance, the only way for someone to obtain authority to act on your behalf would be to petition the court to be appointed as your legal guardian. Guardianship proceedings in the State of Florida can be costly, time consuming, and invasive. After all, in a guardianship proceeding, a court is making the determination on whether you are actually incapacitated and eventually will make a ruling on whether you should have your rights taken away and placed in the hands of your guardian. With a proper Durable Power of Attorney, you can avoid such an outcome.
Another important point to make about why it would be best to try to avoid an instance where someone would have to petition to serve as your guardian would be who gets to petition to serve as your guardian. Under Florida law, any “interested” person can petition the court to serve as your guardian. This could leave you at the mercy of someone who you would rather not have authority over your affairs, say, an estranged child or parent. With a valid Durable Power of Attorney in place, you get to choose who will have such an important role in your life – someone who you trust to take of your affairs.
Is a Durable Power of Attorney Permanent?
No, a Durable Power of Attorney is not permanent. Under Section 709.2109(1), Florida Statutes, a Power of Attorney will be terminated upon the occurrence of the following:
a) The principal dies;
b) The principal becomes incapacitated, if the power of attorney is not durable;
c) The principal is adjudicated totally or partially incapacitated by a court, unless the court determines that certain authority granted by the power of attorney is to be exercisable by the agent;
d) The principal revokes the power of attorney;
e) The power of attorney provides that it terminates;
f) The purpose of the power of attorney is accomplished; or
g) The agent’s authority terminates and the power of attorney does not provide for another agent to act under the power of attorney.
Furthermore, Florida law provides that upon a divorce, powers granted to your ex-spouse under a Durable Power of Attorney are automatically revoked, unless otherwise provided in the document itself. If you are concerned as to whether your Durable Power of Attorney has been revoked or if you would like to ensure that it is properly revoked, it would a great idea to get in touch with your Florida estate planning attorney to plan and advise accordingly. Barreau Legal, PLLC is a Port St. Lucie based estate planning law firm which has the background and knowledge to craft a solid estate plan and probate administration skills to help preserve your legacy for generations to come. Barreau Legal, PLLC would love to hold your virtual consultation to discuss building your Generational Wealth Plan! If you have concerns about how your assets will pass when you die, ensuring your wishes are protected during your lifetime, or keeping your estate out of probate, please reach out to Barreau Legal, PLLC for a consultation at 772-236-5204 or jamy@blegalfl.com.