As you make plans for your future, it is important to consider exactly what is a power of attorney. A power of attorney should be a part of a comprehensive estate plan, and an experienced estate planning lawyer can help. Barbara M. Pizzolato, P.A. provides advice on the creation of POAs to people throughout Fort Myers and surrounding areas, so give us a call to find out if you should make use of this powerful legal tool.
Creating a Power of Attorney
If you create a power of attorney, you are called the grantor of the device in legal parlance. In the POA document, you must name an agent or attorney-in-fact. This agent is empowered by the POA to act on your behalf in a legally binding manner.
Florida Statutes Chapter 709 explains how to create a power of attorney. You must ensure you are clear on who your agent will be, what authority you are transferring to your agent, and when that authority goes into effect. To make certain you are in compliance with all legal requirements, you should consult with a legal professional who can help you.
Limited vs. General Powers of Attorney
There are different types of POAs, including limited powers of attorney, and general powers of attorney.
- A limited power of attorney is used to grant someone the power to act on your behalf in a specific capacity. For example, if you were going to be conducting business in Asia for a month, you could create a limited power of attorney to grant a business associate the ability to sign certain documents on your behalf while you are gone. This would be the extent of the power granted, and it could terminate upon your return from Asia.
- A general power of attorney involves giving your agent the power to act on your behalf in a comprehensive manner. To a large extent, your agent would be able to do anything that you could do on your own behalf, with limits imposed only by Florida law or by any specific instructions you provide.
You must make sure you create the right type of POA to transfer only the authority that you wish to provide to your agent.
A Power of Attorney and Incapacity Planning
We are estate planners. In our area of the law, durable powers of attorney are utilized to account for incapacity.
It is important to understand the fact that many people become unable to make or communicate decisions on their own at some point in their lives. While no one likes to think about the possibility of incapacity, the reality is that a difficult situation could be made worse if you did not make plans to prepare for it in advance.
The state could ultimately appoint someone to make decisions for you if you do nothing to prepare for possible incapacity. When you are properly prepared, hand-picked decision-makers of your own choosing will be able to immediately begin acting on your behalf and there will be no need for a court-appointed guardian.
When you create a power of attorney, you must specify that it is durable if you want it to remain in effect once you have become incapacitated. Florida Statutes Section 709.2104 states that a power of attorney will be considered durable if it contains the words: “This durable power of attorney is not terminated by subsequent incapacity of the principal except as provided in chapter 709, Florida Statutes.”
If your grant of authority doesn’t include that specific language, it can still be considered durable if it contains: “similar words that show the principal’s intent that the authority conferred is exercisable notwithstanding the principal’s subsequent incapacity.”
A durable power of attorney would remain in effect even if the grantor becomes incapacitated. When you create an incapacity plan, you could include a durable financial power of attorney to name a financial decision-maker. You could add a durable power of attorney for health care to empower someone of your own choosing to make medical decisions on your behalf in the event of your incapacitation.
Getting Legal Help With a Power of Attorney
If you are going through life without an incapacity plan, you, your assets, and your family are at risk. Attend one of our monthly seminars in and around Fort Myers to learn about creating a power of attorney. You can call us at (239) 225-7911 or click here to register for an upcoming seminar to learn more about incapacity planning.
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