Many people consider the importance of a will as part of their estate plan but never stop to consider the need for a valid Power of Attorney. A power of attorney is a legal document that allows you to choose another person (agent) to transact on your behalf. It is considered wise to also choose a successor in case your chosen agent is unable or unwilling to serve when called upon. Although usually this power is used when a person becomes incapacitated, it is effective immediately upon signing and very powerful so careful consideration should be given to who you give this power to. The law in Florida has undergone significant changes which went into effective on October 1, 2011. If you have a power of attorney executed prior to that date, it is still valid but may not include many of the new features which you would find desirable. The changes resulted in a very different format and therefore any powers of attorney which were executed prior to that date should be reviewed to make sure that they will do exactly what you want it to do.
In reviewing your Power of Attorney, here are some key things to look for:
1) If you want it to be valid when you become incapacitated, your power of attorney should have the word “Durable” in the title and must contain a matching “durability clause”. A durability clause states that the powers conferred upon your agent will not be affected or diminished by your disability or incapacity.
2) The Power of Attorney should release third parties from liability. Such a clause removes the concern of banks and financial advisors that they will be sued for obeying the instructions of your agent if you disagree with their decision upon your recovery. It simply waives your right to sue your bank or financial advisor for honoring the instructions of your agent.
3) In order to assure that your agent can act when called upon to do so, the statute provides that these third parties will be liable if you are injured by their refusal to honor the Power of Attorney. This is critical to assure that the document will have the necessary teeth to be effective when you need it.
4) Lastly, the new format gives you the ability to tailor the powers granted to your agent to your comfort level.
We suggest that you hire a lawyer who is familiar with estate planning to guide you through the preparation and execution of your power of attorney. To contact Scott click here
Scott C. Dixon, Esq.
Estate Planning and Probate Attorney
Widerman Malek, PL
