Durable Power of Attorney

The MOST IMPORTANT DOCUMENT you need-whether your are 18 or 118.

I cannot emphasize this enough

I am currently doing two medicaid applications. Both of the applicants have old powers of attorney. If the client no longer had capacity we would have to go to court to access assets. Fortunately, both clients have capacity to do a new one. However, I can’t get into the nursing home due to covid. It’s causing stress and attorneys fees to fix this mistake. Please don’t give this aggravation to you family

A Durable Power of Attorney should be a part of every adult Floridian’s arsenal. Only a properly drafted Durable Power of Attorney will afford a level of flexibility necessary to make critical decisions about an incapacitated or unavailable person’s financial matters

Effective Oct. 1, 2011, Florida’s Durable Power of Attorney law was completely revamped.. These changes are intended to provide additional protections for Florida residents and make them more acceptable by financial institutions. We strongly suggest that you not rely on a document prepared under the old law. For more information on the changes see below.

Some important things to consider:

1. Privacy laws WILL prevent you from getting any health or financial information without a durable power of attorney.
2. The Durable Power of Attorney may also impact on Florida Medicaid planning and other asset protection plans, as an agent may need certain powers in order to help the principal achieve eligibility for Medicaid long-term care benefits.
3. It is very important that you seriously consider who you name to act for you as these documents provide broad power. (However, in 2015, it became a felony to abuse a power of attorney!).
4. Revoking the Durable Power of Attorney by destroying the original is no longer sufficient, since financial institutions are now legally authorized to honor a copy of the document. To prevent an agent from using a copy of a revoked Power of Attorney, it is advisable to limit those who have a copy and to keep a record. It may be necessary to take additional steps, including formally give notice to all agents of the revocation.
5. The Durable Power of Attorney is a powerful and complicated legal instrument. It is not a simple form. Florida does not have a statutory form allowing people to simply fill in the blanks and sign. Attempting to adapt generic forms found online and in office supply stores is unwise and a potentially costly mistake. Since the Durable Power of Attorney is usually used by the agent only when the principal is incapacitated or unavailable, any legal deficiency or inadequacy will likely be discovered too late – i.e., when the principal is not capable of creating and signing a new instrument.
6. If you do not have a Durable Power of Attorney, family members and loved ones will be restricted in how they can take care of the incapacitated individual or carry out any planning goals, if any, that the individual had. This also means that your assets may be fully exposed to creditors, a nursing care spend down or taxes.
7. Absent an appointed Agent in a Durable Power of Attorney, it would be necessary for a family member or loved one to petition the court to become the guardian over the incapacitated person. This is expensive, time consuming and very restricting.
8. Therefore, once a person is incapacitated it’s too late. This must be done in advance of illness or incapacity.

We are all living in times when the next day is uncertain. If your mom has a stroke, without a power of attorney, you cannot make decisions for her. If your child is over 18 you cannot get information if there is an accident. Please make having this document a priority in your like and the lives of your adult children.Below are highlights of the new law that went into effect Oct. 1, 2011:

• The new law acknowledges certain “superpowers” that may be granted to the agent. The power to gift from the principal’s funds is one example of a superpower. The power to gift may be needed if the agent ever seeks to establish the principal’s eligibility for Medicaid long-term care benefits. Under the new law, the Durable Power of Attorney must specify the superpowers, if any, being granted to the agent. Also, the principal must physically initial each section of the document granting each superpower.
• A Florida Durable Power of Attorney signed on or after Oct. 1, 2011 must be an “immediate” power. “Springing powers” will not be valid. In other words, once the instrument is signed, the agent has the immediate authority to exercise his powers. Incapacity of the principal is not a prerequisite.
• The new law enables the principal to name backup agents in the Durable Power of Attorney. In other words, it is not necessary to create a different Durable Power of Attorney for each backup agent. Floridians routinely used one instrument to name backup agents, but the new law officially recognizes the principal’s authority to do so.
• Unless the Durable Power of Attorney specifies otherwise, co-agents may act alone, without the consent or knowledge of the other.
• It is no longer necessary for an agent to present the original Durable Power of Attorney to financial institutions. For Durable Powers of Attorney executed on or after Oct. 1, photocopies and electronic copies are considered valid. While this can be a convenience for both principal and agent, it also requires the principal to take extra precautions.
• Read also: What You Need To Know About Getting Durable Power Of Attorney Finances