A Durable Power of Attorney is a legal document authorized by Florida Statutes, Chapter 709, in which the “Principal”, who is the maker of the Durable Power of Attorney, authorizes an individual known as an “Agent” or “Attorney-in-Fact”, who is the recipient of the Durable Power of Attorney authority, to act on behalf of the Principal. The Durable Power of Attorney document controls the authority given by the Principal to the Agent and the Agent can only act within the constraints of the Durable Power of Attorney.
In order to execute a Durable Power of Attorney, the Principal must have capacity at the time of the execution of the Durable Power of Attorney. Capacity means a general understanding of the powers being granted by the Principal to the Agent. A Durable Power of Attorney is not valid unless it is executed by the Principal in the presence of two witnesses and a notary public. If the Principal is physically unable to sign the Durable Power of Attorney, but has the requisite mental capacity to execute the document, the Principal may direct the notary to sign on behalf of the Principal.
A Durable Power of Attorney is one of the most important estate planning documents, but is also the document most prone to abuse and exploitation by the Agent. Before executing a Durable Power of Attorney, be confident and comfortable that the person being designated the Agent is a person who trusted and would not abuse or misuse the Durable Power of Attorney. If all powers and authority authorized by Florida Statutes, Chapter 709, are given by the Principal to the Agent, the Agent can act on behalf of the Principal in almost all instances, except for voting in elections, entering into marriage, signing an affidavit requiring personal knowledge of the Principal, signing or revoking a Last Will and Testament, and similar acts. The Agent has a fiduciary duty to the Principal to act prudently and in the best interests of the Principal and the Agent can be liable civilly or criminally for abuse of the power granted to the Agent.
The Durable Power of Attorney is an important estate planning document because it allows the Agent to operate and act on behalf of the Principal should the Principal become incapacitated or physically unable or incapable of doing acts such as paying bills, filing taxes, buying or selling real property, and accessing bank accounts. A Durable Power of Attorney immediately expires upon the death of the Principal and the Agent ceases to have the authority to act on behalf of the Principal. Furthermore, the Principal, assuming the Principal has mental capacity, can revoke a Durable Power of Attorney and an Agent can resign as Agent of the Principal at any time.
If you are interested in discussing whether a Durable Power of Attorney is right for you, please contact our office for a consultation. We have experienced estate planning attorneys who would love to evaluate your estate and advise you on the best course of action.