What makes a Power of Attorney “Durable?”

What makes a Power of Attorney “Durable?”

After October 1st, 2011, it takes a lot more.

Florida recognizes several types of Powers of Attorney (POA’s). When you sign a General or Limited Power of Attorney, you (the principal) are legally giving someone else (your agent) the authority to act on your behalf.  However, a Power of Attorney terminates if the principal becomes incapacitated. This is where a Durable Power of Attorney (DPOA) comes into play.

Durable Power of Attorney Property GuidingFor purposes of this discussion, we will focus on DPOA’s. As I mentioned above, the main purpose of a DPOA, is that gives the agent the legal authority to manage someone else’s estate while the principal is no longer able to do so themselves. Let me be clear, a DPOA is not a substitute for a valid will, nor is it an automatic carte blanche changing of the guard.

Under the old law, you may have gotten away with a blanket DPOA granting power to agents to “do any and all acts as if the Principal were present,” this is no longer the case. The new law requires the individual signing the DPOA (principal) to initial or sign certain powers if they want their agent to be able to use those powers.

In addition, as you can imagine, banks and lending institutions are not very comfortable acting on a DPOA, (or any POA for that matter) for privacy issues and the potential of exposure to liability. The law now allows them to require the agent to obtain a legal opinion letter that the DPOA is valid. It also gives banks time to review the document to determine if they will accept it.

Another change in Florida law is that we no longer recognize “springing” DPOA’s, signed after  the 2011 effective date. This means, upon execution, they will take immediate effect, compared to them “springing” into effect only upon incapacitation of the principal.

In addition to the requirements above, DPOA’s also require special notice for financial institutions and require specific language and certain citing to statute to bolster the agent’s position that the agent has the authority they claim, and that DPOA is valid.

Bottom line, if you are in need of any estate planning services or a POA of any sort, you should speak with a licensed Florida attorney. Once upon a time, these may have been fill-in-the-blank-forms, but that is no longer the case.

By its very nature, this is a generalized discussion, not intended for any particular set of facts.  By no means does this blog create an attorney-client relationship or attorney-client privilege between the attorney and the readers. The law frequently changes as new cases are decided and published regularly. Anything relied upon in this or any blog, is done so at the readers own risk.

The Guirguis Law Firm, PLLC
1423 S.E. 16th Place, STE 204
Cape Coral, Florida 33990
239.573.9939 Telephone
239.603.9939 Facsimile

Posted on March 6, 2013, in Legal and tagged , , , , , , , , , , , , , , , , . Bookmark the permalink. Leave a comment.

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