Power of Attorney
A Durable Power of Attorney should be a part of every Florida resident’s estate plan. It authorizes someone (the “agent”) to manage the financial affairs of another (the “principal”). The Durable Power of Attorney may also have an impact on Florida Medicaid planning, as an agent may need certain powers in order to help the principal achieve eligibility for Medicaid long-term care benefits. Effective Oct. 1, 2011, Florida’s Durable Power of Attorney law changed. These changes are intended to provide additional protection for Florida residents from overreaching by authorized agents and from financial abuse. Important note: Any valid Florida Durable Power of Attorney signed before Oct. 1, 2011 will remain valid.
Below are highlights of the new law that went into effect Oct. 1, 2011:
The new law acknowledges certain “superpowers” that may be granted to the agent. The power to gift from the principal’s funds is one example of a superpower. The power to gift may be needed if the agent ever seeks to establish the principal’s eligibility for Medicaid long-term care benefits. Under the new law, the Durable Power of Attorney must specify the superpowers, if any, being granted to the agent. Also, the principal must physically initial each section of the document granting each superpower.
A Florida Durable Power of Attorney signed on or after Oct. 1, 2011 must be an “immediate” power. “Springing powers” will not be valid. In other words, once the instrument is signed, the agent has the immediate authority to exercise his powers. Incapacity of the principal is not a prerequisite.
The new law enables the principal to name backup agents in the Durable Power of Attorney. In other words, it is not necessary to create a different Durable Power of Attorney for each backup agent. Floridians routinely used one instrument to name backup agents, but the new law officially recognizes the principal’s authority to do so.
Unless the Durable Power of Attorney specifices otherwise, co-agents may act alone, without the consent or knowledge of the other.
It is no longer necessary for an agent to present the original Durable Power of Attorney to financial institutions. For Durable Powers of Attorney executed on or after Oct. 1, photocopies and electronic copies are considered valid. While this can be a convenience for both principal and agent, it also requires the principal to take extra precautions:
First, the principal must be doubly cautious with regard to whom copies are given.
Secondly, revoking the Durable Power of Attorney by destroying the original is no longer sufficient, since financial institutions are now legally authorized to honor a copy of the document. To prevent an agent from using a copy of a revoked Power of Attorney, it is advisable to take additional steps including: formally notifying all agents of the revocation; recording the revocation with the Clerk of the Court in Public Records; and alerting financial institutions of the revocation.
The Durable Power of Attorney is a powerful and complicated legal instrument. It is not a simple form. Florida does not have a statutory form allowing people to simply fill in the blanks and sign. Attempting to adapt generic forms found online and in office supply stores is unwise and a potentially costly mistake. Since the Durable Power of Attorney is usually used by the agent only when the principal is incapacitated or unavailable, any legal deficiency or inadequacy will likely be discovered too late – i.e., when the principal is not capable of creating and signing a new instrument.