Many people are surprised to know that they are unable to act on the behalf of a loved one in the event of an emergency. This is because legal authority must be granted to another person to allow them to act on that person’s behalf. Even spouses (regardless of length of marriage) and parents of adult children are unable to act on the behalf of their spouse or adult child without being given legal permission. This grant of legal permission to act on the behalf of another person is done through a power of attorney.
A power of attorney is a legal document which grants another person the legal permission and responsibility to act on your behalf, as your agent, in certain circumstances. Some of these actions can involve actions crucial for daily living, such as being able to pay the electric bill or use your debit card to buy groceries, or can be used as an estate planning tool, such as being able to gift assets or sell real property to qualify for certain Florida Medicaid or VA Benefits. (See also FLORIDA MEDICAID / VA AID & ATTENDANCE for more information). There are three main types of powers of attorney: a general power of attorney, a limited power of attorney, and a durable power of attorney.
A general power of attorney allows the agent you appoint to do almost anything and everything on your behalf that you could legally do yourself. However, this type of power of attorney must still list the specific powers that are being granted to the agent.
A limited power of attorney specifies that the agent can only perform a certain limited number of acts or transactions for you. A temporary power of attorney may be used if you will be out of the country or indisposed for a limited period.
A durable power of attorney (DPOA) is the type of power of attorney document most often included in estate planning. When you appoint someone to be your durable power of attorney, you are selecting and authorizing a person who will handle your financial affairs when you have become incapable of handling them yourself. This could be due to a disability, generally associated with old age and or declining health. The power of attorney will ordinarily last until your death and the agent whom you appoint has a fiduciary duty to act in your best interest.
Under Florida’s statute detailing execution requirements for power of attorney documents, certain powers that a principal is granting to their agent must be include the principal’s initials to grant proper authorization. These are enumerated in Fla. Stat. § 709.2202 and include the power to create an inter vivos trust, to make a gift, or to change or create a beneficiary designation, among other powers. This is exceptionally important to acknowledge when considering applying for Florida Medicaid and VA Aid & Attendance benefits. This is because a benefit applicant may require their agent to restructure assets or create irrevocable trusts to hold certain assets to meet the eligibility requirements for these benefit programs. If the applicant’s power of attorney does not specifically grant their agent the power to carry out these actions, these benefits may not be attainable – especially if the applicant is already incapacitated and unable to manage their affairs on their own behalf. This is why it is important to hire an attorney who is familiar with the current execution requirements for power of attorney documents as well as how the power of attorney can be a pivotal aspect of Florida Medicaid or VA Aid & Attendance benefit planning. The experienced attorneys at the law firm of Gorman & Jones, PLC have the knowledge to create the proper power of attorney to meet your estate planning goals, so call our office today at (813) 856-5625 for a free initial consultation.
The elder law attorneys at Gorman & Jones, PLC, located in Tampa, Florida can help you implement any of these types of power of attorney that you wish to include as part of your estate plan.
A power of attorney gives control of how you want your life matters to be handled by a person you trust and gives you a voice when your disability prevents you from making important personal decisions. For more information on how powers of attorney can add to your peace of mind, contact Gorman & Jones, PLC, at (813) 856-5625 for a complimentary initial consultation. We schedule appointments at your convenience with weekday and evening hours available.
Q: My husband just passed away, but he signed a power of attorney last year and appointed me as his agent. Can I use the power of attorney to take over his bank account to avoid having to file a probate, since the bank account was only in his name?
A: Unfortunately, no. A power of attorney is only valid during the lifetime of the principal (the person creating the power of attorney). This means that it became invalid upon your husband’s passing. Since the authority granted to you regarding this account terminated and you are not a co-owner or a beneficiary on the account (either as a POD or TOD), the account will need to be probated.
Q: Will I need to become incapacitated for my power of attorney to become effective, or is it in effect right now even though I have full capacity?
A: Since Florida does not allow a springing power of attorney, the power of attorney document is effective as of the date of its creation (and will last until your passing or until you revoke the document). A springing power of attorney is one that goes into effect upon the incapacity of the principal. However, Florida only permits a durable power of attorney, which is effective immediately. Therefore, it is imperative to appoint people whom you can trust as your agent under your power of attorney since they are granted immediate authority to act on your behalf if they have access to your power of attorney document.
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