Durable Power of Attorney

Miami wills and trusts attorney Randy A. Bryant believes that all Florida residents should take the time to ensure that they have the proper legal documents and forms necessary to protect their interests, including legal and financial decisions, should they become incapacitated. To this end, the Bryant Law Firm has over a decade of experience in assisting clients in establishing a Durable Power of Attorney.

A Power of Attorney is a legal document that allows an individual to delegate certain responsibilities or authority to another individual. The creator of the Power of Attorney can delegate to an “agent” the right to take any number of actions on the creator’s behalf. The scope of a Power of Attorney can be very broad, encompassing all financial matters for example, or can be very limited, perhaps only dealing with a specific trust or completing one specific action.

There are several kinds of Power of Attorney, but most important in estate planning is the Durable Power of Attorney. Normally, a designated Power of Attorney is no longer effective when the creator becomes incapacitated. A Durable Power of Attorney, however, allows the document to remain effective even if incapacity arises. Additionally, any Durable Power of Attorney executed before Oct 1, 2011 may have what is called a “springing” power. This means that the Power of Attorney does not come into effect until the incapacity arises – it is for the specific purpose of use at the time of incapacity. A 2011 Florida law eliminated the option of springing powers in Durable Powers of Attorney, meaning that any new Durable Powers of Attorney will be effective as soon as they are signed by the creator.

A Durable Power of Attorney can only be signed by someone who is competent at the time of the signing, and who understands the effects that the document will have. Additionally, a Durable Power of Attorney may only delegate actions and responsibilities to an agent who is over 18 years of age and who is considered reliable and trustworthy. The document must be clearly worded to specify that it is meant to be durable, so it is important to consult a qualified estate administration attorney if you are thinking of creating a Durable Power of Attorney.

Under a Durable Power of Attorney, an agent may perform any acts specified in the document and any acts “reasonably necessary to give effect to the specified acts.” Acts delegated to an agent may include:

• Conducting banking transactions
• Overseeing investment decisions
• Selling a home
• Paying bills
• Filing taxes and dealing with the Internal Revenue Service
• Medicaid Planning

Although the scope of possible actions is broad, there are certain acts that an agent cannot do. Under Florida law, agents are prohibited from practicing law on behalf of the creator of the Durable Power of Attorney unless he or she is a licensed member of the Florida Bar. Agents also may not vote on behalf of creators or create or revoke a will for the creator.

Planning for life’s unexpected events is an important part of estate planning. We all want to know that our needs and interests will be taken care of in the event we cannot do so ourselves, both for our own wellbeing and for the wellbeing of our loved ones. If you or a family member are considering whether to establish a Durable Power of Attorney, South Florida estate planning attorney Randy A. Bryant and the Bryant Law Firm are here to assist you. We will guide you through the Durable Power of Attorney process and can help you determine whether this document is a good option for you, what the scope of delegation of authority might be, and who is best suited to be an agent for you. To schedule a free consultation to discuss your estate planning issues, call our Coconut Grove office at 305.456.2777. You can also contact us online.