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
free, 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 free consultation at 772-236-5204 or jamy@blegalfl.com.