THE NEED FOR A DURABLE POWER OF ATTORNEY IN FLORIDA

As long as you are mentally able to administer and make decisions about your finances, you might not consider the importance of having a power of attorney document.  However, unforeseen events such as accidents or illnesses may result in being unconscious or sedated for a period of time.  During that time, having someone you trust take care of your finances, including doing tasks such as writing checks on your behalf, communicating with the mortgage, electric, water and/or phone company, and/or, administering your banking and/or investment accounts is critical.  In Florida, the document by which you legally grant these powers to another person, prior to any period of incapacity, is a Durable Power of Attorney; when signed by you (known as the ‘principal’), the person you appoint (known as the “agent” or “attorney in fact”) will be legally empowered to assist you during this time. In Florida, a “Durable” Power of Attorney means that the persons you appointed would still be in place even if you subsequently became incapacitated, unless a court were to rule that for some reason the document is not valid. See Florida Statute here https://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&URL=0700-0799/0709/0709ContentsIndex.html for more information.

What happens if you find yourself in a situation where you’re not able to speak for yourself or manage your own finances, and you do not have a Durable Power of Attorney document?  A local court will be forced to appoint a Guardian for you.  In Florida, a person cannot apply to be someone’s guardian unless they have an attorney.  Therefore, from the start, this makes the appointment of a guardian a costly matter.  Once a Guardian is appointed, the local court retains jurisdiction and supervises the actions of a guardian, including the annual filing of an accounting (this means more fees). A bank account is usually established for a guardianship, but no withdrawals can be made without court approval – a characteristic of guardianships which adds expense to an already costly procedure.  Once a Guardian is appointed and a guardianship is established, it continues until the death of the incapacitated person (called a “Ward”) or until the ward’s capacity is restored, something that doesn’t often happen. For more information about Florida guardianships, see: https://www.flcourts.org/Resources-Services/Court-Improvement/Family-Courts/Guardianship

The importance of having a Durable Power of Attorney is that under Florida law, a court may not appoint a Guardian if there is a less restrictive alternative to guardianship that will sufficiently address the problems of the incapacitated person; having both a valid Durable Power of Attorney (and Designation of Health Care Surrogate for medical decisions) is considered a less restrictive method.  In addition to the convenience of having been able to appoint a person(s) you personally trust to manage your affairs in the event you are not able to do so yourself, avoiding a guardianship is probably the best reason to have a Durable Power of Attorney and Designation of Health Care Surrogate (which is sometimes known as a Medical Power of Attorney).  Similarly, the Medical Power of Attorney document allows you to appoint a person(s) to make medical decisions on your behalf in the event you are not able to do so – see our Blog on Medical Powers of Attorney for Adults and Children.

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