What do each of the following situations have in common?
- A 73-year-old man suffers a stroke, becomes paralyzed and unable to speak or write.
- A married couple signs a contract for sale of real estate. Between the date of signing the contract and the date of closing, the wife falls and suffers a brain injury, is in the hospital, and is unable to attend the closing or understand things clearly.
- A driver runs through a stop sign, causing an automobile accident which puts the other driver in the hospital in a coma.
- An elderly woman who is in good health, but notices her memory failing, and foresees a day when she will not be able to handle her own financial affairs.
The answer to this riddle is that all of these persons could have benefitted by having a Durable Power of Attorney.
A Power of Attorney is a written authorization by a person (the Principal) which designates another person (the Attorney-in-Fact) to act as the Agent of the Principal, for a particular purpose. You may utilize a Power of Attorney to enable someone to act on your behalf, if you are not present and able to do so, for the particular task(s) specified in the Power of Attorney. The power may be narrow n scope or very broad, depending upon the specific wording. A Power of Attorney can be revoked by the Principal, and it is automatically revoked and becomes invalid upon the death of the Principal. A Power of Attorney is also revoked by operation of law, upon the incompetency of the Principal, unless the Power of Attorney is a “Durable Power of Attorney.”
Under Florida law, a Durable Power of Attorney is one which specifies that it will survive the incompetency of the Principal. A Durable Power of Attorney is valid until the Principal: (1) dies, or (2) revokes the power, or (3) a petition is filed to have a court determine incapacity of the Principal.
If properly prepared, a Durable Power of Attorney may avoid the need for a guardianship, in the event that the Principal becomes incompetent or incapacitated.
Do not rely upon forms from an office supply store or forms found on the internet. These documents have very stringent statutory requirements in order to be accepted when needed. Please seek the advice of an attorney in preparing a Durable Power of Attorney.
It is extremely important to note, however, that most Durable Powers of Attorney are drafted in such a way that they enable the Attorney-in-Fact (the Agent acting for you under the Power of Attorney) to take any action with regard to the Principal’s property that the Principal could do himself. Therefore, it is absolutely imperative that the Principal have complete trust and confidence in the Attorney-in-Fact, prior to designating the Attorney-in-Fact, because the document is essentially a license to transfer all of the Principal’s assets, and an unscrupulous Attorney-in-Fact could misuse that power.
When used properly, a Durable Power of Attorney is an excellent way to avoid the expense and public disclosure required by guardianship proceedings. It may avoid the emotional problems associated with having a person declared incompetent in a court proceeding, and may avoid the additional costs associated with filing annual reports and annual accountings with the court, as required in guardianship proceedings.
In a case where the Principal becomes incompetent after executing a Durable Power of Attorney, the Attorney-in-Fact may continue to act on behalf of the Principal by paying living expenses, selling property, or taking other acts which may be necessary to protect the Principal’s property. The Attorney-in-Fact may continue to so act until the death of the Principal or the filing of a petition to have the Principal adjudicated incompetent in court.
A Durable Power of Attorney may also be used by persons who are competent, but who are unavailable to execute documents in connection with a transaction. Examples would include things such as closing a sale or purchase of a house or transferring title to a car. However, when planning to use a Durable Power of Attorney for those types of transactions, the Power of Attorney must be presented to the closing agent, who will have to review the Power of Attorney to determine whether it grants the required authority to conduct the transaction in question, and whether it was properly executed and acknowledged by a Notary Public. Each Power of Attorney must be judged on its own terms, and the wording must be clear and unambiguous. In addition, the Attorney-in-Fact may be required to execute an affidavit, at the closing of the transaction, attesting to the fact: (a) that the Power of Attorney has not been revoked; (b) that the Principal is alive, and (c) that the Attorney-in-Fact has not received notice of the commencement of any proceedings to declare the Principal incompetent.
When the Durable Power of Attorney statute was first enacted, only certain family members could act as the Attorney-in-Fact. The statute has been amended to allow persons other than family members to serve as Attorney-in-Fact and has also been amended to provide protection to third parties who act in reliance upon the authority granted in the Durable Power of Attorney. Durable Powers of Attorney are becoming more “user friendly” as a result of these changes in the law, and, when properly utilized, can be an excellent, less expensive alternative to living trusts in planning for incapacity.