Do I Need a Durable Power of Attorney?

One of the most important estate planning documents is the Durable Power of Attorney. Top things to know about the Durable Power of Attorney:

  • Appoints one or more people (your Agent) to handle your financial and legal matters.

  • It is effective when signed.

  • It is not effective when you pass away.

  • Your Agent can act on your behalf even if you have not been declared incapacitated.

  • Can avoid a long and expensive guardianship proceeding.

  • Your Agent can complete Medicaid and VA benefit planning for you if you are unable to do it yourself.

Executing a Durable Power of Attorney while you are still competent will give your family members piece of mind that they will have the appropriate legal tools to continue to care for you if incapacity occurs, whether temporary or permanent. It is never too early to get a Durable Power of Attorney!

For those who already have a Durable Power of Attorney drafted in Florida, it is important to know that the Florida legislature made a comprehensive overhaul of the Florida Power of Attorney statute in October 2011. The changes were substantial and now all Powers of Attorney must include a provision outlining “special powers” that the Principal (person creating the document) must initial to allow their named Agent or successor Agent to exercise the “special powers.” The “special powers” include, but are not limited to: Medicaid & VA Planning for the Principal; Creating special needs trusts for the Principal; and Dealing with qualified plans or retirement benefits of the Principal. In addition, many banking institutions and investment companies refuse to accept the pre-2011 version of the Power of Attorney because it lacks the “special powers.”

Unfortunately, many people wait until it is too late to execute a Durable Power of Attorney because the person has become incapacitated. At that point, they will not be allowed to execute the document and a guardianship may need to be initiated by an attorney to get a legal guardian appointed to make financial and legal decisions for the incapacitated person.

Don’t wait! Contact an elder law attorney today to make sure your affairs are in order.

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