Power of Attorney
Serving You and The State of Florida
While making plans for getting married, buying a first home, or having a child can be exciting and often enjoyable, there are other critical life decisions to consider during this stage of your life. Whether you have already settled down or are just getting started, creating an estate plan or a living will is a decisive step you can take to secure your personal assets and ensure that loved ones are supported in your absence.
Addressing these critical end-of-life decisions will also enable you to evaluate what kind of support systems are in place should you become unexpectedly incapacitated or otherwise incapable of caring for yourself or your family. Although we aspire to lead healthy and uncomplicated lives, tragedies occur every day, and it is essential to be prepared for them if they do.
What Is A Power Of Attorney?
A power of attorney (POA) provides written authorization for an individual to represent you and take legal actions on your behalf. The agent you select will be granted specific responsibilities and access to certain accounts depending on the guidelines outlined in the document. Typically, this is done as part of the estate planning process. An experienced attorney can explain to you the various classifications of powers of attorney and help you assign the right individual to the role.
General Power Of Attorney
This type of POA provides a broad scope of what the agent may be empowered to do and enables them to sign legal documents on your behalf. Unless expressly limited, this individual would have full ability to represent you and take specific actions in your name.
An agent assigned to the role of a general power of attorney is someone who maintains full financial authority, including the purchase or sale of property and investments. A general power of attorney is only active so long as the principal is still alive and not incapacitated.
Durable Power Of Attorney
Unlike a general power of attorney, a durable power of attorney extends beyond the point in which the principal has become incapacitated unless the responsibilities are previously revoked. This enables an agent to continue acting on your behalf, even if you are unable to provide essential input. It is especially critical to ensure that you select a reliable and trustworthy agent for this type of POA.
Limited Or Special Power Of Attorney
With this type of power of attorney, a principal may assign more specific abilities than a general or durable POA. Additionally, this agent may only be active for a certain period of time or in the case of a specified event. For instance, an agent may be granted the authority only to manage the sale of real estate or sign a particular document in your absence. This is the most controlled type of power of attorney.
What Can Someone With Power Of Attorney Do On My Behalf?
Essentially, a power of attorney can do most anything as specified in your assignment of the role. You and your attorney can determine the parameters under which your agent can act and to which accounts they will be granted access. However, there are certain limitations for POAs as mandated by state laws.
In the state of Florida, regardless of written permissions or authorization, a power of attorney is legally prohibited from executing or revoking the will of the principal. Some states may permit the creation of trusts or gifts of assets. Those abilities must often be explicitly written within the power of attorney designation, and each power must be initialed by the principal. Additionally, a power of attorney is prohibited from signing any document that indicates the principal’s personal knowledge, voting in a public election on behalf of the principal, or performing personally contracted work in the principal’s place.
What Does A Medical Power Of Attorney Do?
An agent assigned explicitly to medical necessities is most often under a durable power of attorney classification so that they can make decisions on your behalf should you become incapacitated or unable to care for yourself. This agent is typically responsible for:
- Selecting which healthcare providers the principal visits
- Deciding where the principal lives, whether that be in a long-term care facility or other assisted living arrangements
- Taking care of basic everyday needs, including bathing or grooming
- Hiring additional employees if necessary to assist with daily needs
- Deciding the degree of medical care the principal receives, including surgery, psychiatric treatment, hospital care, etc.
Regardless of a medical power of attorney’s own values or preferences, they are legally obligated to act in the principal’s best interest and in accordance with their living will. For example, if a principal specifies that they do not wish to be placed on life support, a medical power of attorney would be acting outside of their legal duties if they chose to put the principal on life support. Misrepresenting a principal’s intentions and abusing any power of attorney abilities can result in a civil or criminal lawsuit.
What Does A Financial Power Of Attorney Do?
A financial power of attorney is often tasked with managing a principal’s investments, estate, and daily transactions. In addition to paying bills, this agent may be responsible for:
- Filing taxes on behalf of the principal
- Managing the principal’s property
- Selling assets
- Collecting outstanding debts belonging to the principal
- Operating ongoing business transactions
- Maintaining investment accounts and making investment decisions
- Accessing the principal’s accounts to pay for housing or health care
- Applying for public benefits
- Collecting and managing retirement benefits and accounts
Most often, a financial power of attorney is also in the form of a durable POA. If you were to become incapacitated or mentally incompetent, you would want someone you trust to make critical decisions about your finances and maintain your accounts.
When Does A Power Of Attorney Go Into Effect?
A power of attorney generally becomes effective as soon as it is signed into action. Most often, however, circumstances do not require immediate use of these abilities. For example, a parent might assign their adult child to be their power of attorney, but that child would only be granted such access once the parent becomes mentally incompetent. However, there are circumstances in which the power of attorney abilities may start earlier to enable that child to assist their elderly parent with errands or managing their finances.
A financial power of attorney is in effect so long as the expiration date or specific parameters do not indicate an early termination. There are usually only four circumstances that would terminate the abilities of a power of attorney:
- The principal revokes the power of attorney
- The principal becomes mentally incompetent
- The principal assigns a particular expiration date or circumstantial limitation
- The principal passes away
A durable power of attorney is the only classification that would maintain in effect even after the principal becomes mentally incompetent or otherwise incapacitated and unable to care for themselves.
How Do I Assign A Power Of Attorney?
Despite the widespread misconception that a power of attorney can be assigned in the instance that a loved one becomes incapacitated, only a mentally competent individual can appoint their POA. Because a power of attorney is a legally binding document, the principal must be of sound mind in order to assign their future POA. For this reason, planning in advance and appointing a trustworthy representative to handle your affairs prior to any accidents or incapacitation is so critical.
Each state maintains its own laws surrounding the creation and execution of a power of attorney. In the state of Florida, these agreements must be signed by the principal, along with two witnesses, and be acknowledged before a notary public. Additionally, a power of attorney must list specific abilities; a general statement of legal authority does not provide sufficient support for enabling an agent to act on your behalf. For example, you must specifically designate and initial each ability assigned to a POA, including:
- Changing beneficiary designations
- Gift giving
- Amending, modifying, revoking, or terminating a trust
- Disclaiming property
Can You Create Your Own Power of Attorney?
It is never wise to use templates or boilerplate contracts from the Internet to write a legally binding agreement, but it is particularly dangerous when assigning a power of attorney. Due to the gravity of responsibility that a power of attorney maintains in their role as a care provider and advocate, it is critical that you work with a skilled attorney to ensure that every detail is customized to meet your specific needs.
Using a power of attorney document from the Internet may cause serious challenges when the agent becomes active. In addition to not being specific enough to your individualized needs, a boilerplate power of attorney document may:
- Be outdated
- Not accommodate legal requirements according to your state
- Be too ambiguous
- Lack necessary limitations
Who Should I Choose To Be My Power Of Attorney?
A power of attorney is someone who may be handling your private affairs, from financial management to health care decisions and daily responsibilities. Therefore, it is crucial to select someone trustworthy and reliable. The individual should fully understand the capacity in which they are to serve your best interests, should prioritize your wellbeing over all else, and should understand your values and end-of-life wishes. A power of attorney does not necessarily have to be a family member but could also be a close friend.
If you do not have an extensive network from which to select a power of attorney, work with your attorney to develop strict parameters under which the agent may act. Certain limitations can enable an agent to accomplish necessary tasks, such as paying bills or buying groceries, but not give them full access to your accounts. A skilled lawyer can ensure that your wellbeing is protected and your basic needs are met.
If you or someone you know is under the impression that an agent is abusing their power of attorney, it is critical to take action early. Consult with an experienced civil attorney to seek a review or removal of the agent.
Make The Most Critical Decisions While You Can
Although it may be less enjoyable to plan ahead regarding your financial and medical wellbeing or end-of-life arrangements, this is an essential step to ensure that even your most basic needs will always be met. Should you one day be incapable of caring for yourself or need someone to make critical decisions on your behalf, it is essential to have the right people representing you.
Work with an experienced attorney at the Lopez Law Group to develop a plan that will provide peace of mind while you’re mentally and physically present and serve you well should you one day not be. Having an assigned power of attorney for all your individualized needs will prevent you or your loved ones from experiencing challenges with managing your affairs. Call our office today for a consultation.
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