All too often, people who have taken the time to create a Last Will and Testament seem to believe that they’ve just done all that they need to do to protect themselves and their estate. In a perfect world, maybe that would be true, but here in the real world a will is only one piece of the estate planning puzzle. Most of those folks could also likely benefit from the addition of a living trust. Some could certainly reap dividends from Medicaid planning. All of them could benefit from executing a power of attorney. In fact, one of the most important ways to protect yourself and your estate involves the use of a Durable Power of Attorney in Florida.
What is a Durable Power of Attorney?
It is important to understand what a Durable Power of Attorney actually is, and how it differs from a General Power of Attorney. That General Power of Attorney designates an agent who is empowered to perform any authorized legal act on your behalf. Typically, the specific acts that you want to authorize are listed and included as part of the document that creates the power of attorney. This can be an incredibly powerful tool, since it basically permits the designated agent to act in authorized areas with all of the authority and power that you possess. There is, however, one power that the General Power of Attorney lacks: the power to survive when you are incapacitated. If, for any reason, you lose the ability to make your own decisions, then the General Power of Attorney is nullified.
To counter that termination, the Durable Power of Attorney was created. The Durable Power survives incapacitation, allowing your chosen agent to act in your interests and on your behalf even after you lose the ability to do so yourself. Florida law has specific requirements, however, so you should never simply assume that the power will survive all eventualities. To ensure its durability, you need to add specific instructions that declare that it remains in effect even if you become incapacitated.
How Does It Work?
First of all, it is important to understand that you can only provide this power to your designated agent while you are still considered to be competent to make that decision. The law requires that you have the capacity to understand the choice that you are making and the documents that you are signing – as well as the extend of the power that you are granting to your agent.
Once that power is granted, your chosen agent basically has the power to act in your stead in any allowable legal area of activity that you have authorized. He or she can do everything from cashing checks for you to paying bills with your bank account, purchasing property for you, or selling your assets. In short, his or her actions on your behalf carry the weight of your personal and legal authority. Because activities must be authorized by the empowering document, lawyers will often cite certain provisions of Florida law to ensure that specific financial activities that might have been neglected in the document can still be carried out. These include statutory language covering the broad authority to conduct banking and investment transactions.
How Can It Protect You?
A Durable Power of Attorney can protect you in many ways. There are many examples in which people have fallen seriously ill or suffered severe injuries that left them comatose or otherwise incapable of making their own financial decisions. Far too many times, these people have no legal documents in place to ensure that someone they trust is empowered to act in their stead. That can result in emotionally-exhausting court struggles over issues of competence and guardianship. Eventually, the court has to appoint someone to represent the incapacitated person’s interests.
If that happened to you and you had no designated agent to act on your behalf, your financial affairs could languish while the court works to find a guardian. If your family is dependent upon your financial accounts and other assets for basic sustenance, they may have no way to access those assets while guardianship is being decided. Bills may go unpaid. If you own a business, your employees may suffer as their paychecks are not issued.
If, on the other hand, you already had taken the steps necessary to execute a Durable Power of Attorney, then your chosen agent would spring into action, prepared to act on your behalf in accordance with the instructions and authorization you’ve provided. That can ensure that your bills continue to be paid, guarantee that your loved ones continue to have access to the money they need to survive, and maintain continuity in your business and investment activities.
Note also that this is not just for emergency preparation. Sometimes, our reasons for needing a Durable Power of Attorney are staring us in the face when we look in the mirror. This is true for those who are diagnosed with serious diseases, or who suffer disabilities that can have withering impact on their lives. This power of attorney can even be beneficial for married couples who want to avoid any possibility of court interference in the event one of them becomes incapacitated and the other needs to sell or refinance jointly held assets.
In short, the Durable Power of Attorney provides security and peace of mind for anyone who wants to ensure that his affairs will be properly managed in the event he becomes incapacitated. The protection it provides makes the power of attorney instrument one of the most critically important tools in any comprehensive estate plan.
At Robert Kulas Attorneys at Law, our experienced legal experts can provide you with the Durable Power of Attorney that best meets your unique needs. We will work with you to ensure that you have the tools you need to accomplish all of your estate planning goals, and help you in your efforts to better prepare for your future and your family’s long-term security. If you’d like to know more about how we can assist you in reaping the benefits of a Durable Power of Attorney, visit us at our website or call us today at (772) 398-0720.
