We always counsel clients about the importance of having an advanced directive and durable power of attorney. But what makes for a “good” durable power of attorney?
To answer this question, let’s start with what makes a “bad” durable power of attorney. Bad powers of attorney include forms you download from the internet, packets hospitals give you before surgery, or a form you receive from a friend. These are not comprehensive, nor tailored to your best interests.
It’s not sufficient to have only a durable power of attorney. You must possess a document that specifically outlines your wishes and directives in depth.
In Florida, you can’t just say, “I give unilateral power for this person to make all decisions for me.” The law requires more detail.
Just having a power of attorney, whether it is an internet form, a form that someone prepared a long time ago, or a form that you used in your state before moving to Florida, is not enough. Florida legislation is very particular about its power of attorney requirements. A lackluster or incomplete document could land you in guardianship court!
A good durable power of attorney generally:
- It says in the document that it is “durable.” There is statutory language that states when a power of attorney is durable. This is very important since if the power of attorney is not durable, it expires upon incapacity, which equals guardianship court!
- It was prepared in Florida, by a Florida attorney (preferably an Elder Law attorney). Yes, out of state powers of attorneys are valid if they are valid under the law of that particular state. But Florida formalities, particularly, the “super powers,” require that they must be initialed by the client in order for an agent to perform that particular act
- Appoints a trusted person to make your decisions
- Was signed after October 1, 2011, giving your appointee “super powers,” such as the ability to modify a trust or deed
- Contains the power to sell property, including homestead property
- Contains the “super powers.” Under Florida law, certain powers need to be particularly explained to the client, and if the client accepts, he or she needs to initial the “super power.” For example, powers to make gifts, to create or amend trusts, or to disclaim, are “super powers” that the client needs to initial in order for the agent to be able to perform that particular act. Other states don’t have this formality
- Plans for long-term care, including Medicaid and Veteran’s Benefit planning
- Follows Florida law, i.e., gets signed in front of two witnesses and bears the signature of the principal, acknowledged by a notary public
So, when determining if you have a “good” power of attorney, go through this bullet points and self-assess your documents. When in doubt, call us.
When was the last time you reviewed your power of attorney? Are you in doubt regarding previous decisions? To ease your fears, call us at (954) 532-9447.
All My Best,
Horacio Sosa, Esq.