Do I Need a Durable Power of Attorney? What Does It Do?

An estate planning lawyer at Kramer, Green, Zuckerman, Greene & Buchsbaum, P.A. can help determine if a durable power of attorney is an appropriate part of your estate plan. We also can answer your questions and assist you in choosing the people whom you wish to serve as your power of attorney in the future.

What is a Power of Attorney?

Under Florida Statutes, Chapter 709, a power of attorney (POA) allows an individual (the “principal”) to designate another person (the “agent”) to act on their behalf. In most cases, a person uses a POA to allow the agent to conduct financial transactions on their behalf.

What Makes a Power of Attorney Durable?

A POA is “durable” if it remains in effect even after the principal becomes incapacitated and unable to make decisions for himself or herself. However, under Florida Statutes 709.2104, a POA cannot be durable unless it contains the words “This durable power of attorney is not terminated by subsequent incapacity of the principal except as provided in Chapter 709, Florida Statutes,” or similar words showing that the principal intended the durable power of attorney to continue to be effective beyond their incapacity.

A durable POA can be either broad or specific. A broad durable POA allows the agent the general authority to handle all financial transactions. A limited or special durable POA allows the agent only the authority to act for a specific purpose or for a limited duration of time. For instance, a limited durable POA may allow an agent to sign real estate closing documents for a principal who will be out of town on the closing date.

What are the Agent’s Duties Under a POA?

An agent owes a fiduciary duty to a principal. As a result, the agent must act within the scope of the authority outlined in the durable power of attorney. The agent must act in good faith, in the principal’s best interest, and according to the POA’s reasonable expectations, to the extent that the principal has communicated those expectations. An agent can be liable for acting outside of the scope of authority of a POA or otherwise violating the POA.

Under Florida Statutes 709.2201, the agent only has the duties specifically outlined in the POA. Those duties may include, but are not limited to:

  • Execute stock powers and register stocks, bonds, and other securities into or out of the principal’s name;
  • Convey or mortgage homestead property;
  • Make healthcare decisions (if specifically granted in the POA).

However, a POA may not:

  • Perform duties under a contract that requires the exercise of personal services of the principal;
  • Make any affidavit as to the personal knowledge of the principal;
  • Vote in any public election on behalf of the principal;
  • Execute or revoke any will or codicil for the principal; or
  • Exercise powers and authority are granted to the principal as trustee or court-appointed fiduciary.

The durable power of attorney also must contain specific provisions to give the agent the following types of authority:

  • Create an inter vivos trust;
  • Concerning a trust created by or on behalf of the principal, amend, modify, revoke, or terminate the trust, but only if the trust instrument explicitly provides for amendment, modification, revocation, or termination by the settlor’s agent;
  • Make a gift;
  • Create or change rights of survivorship;
  • Create or change a beneficiary designation;
  • Waive the principal’s right to be a beneficiary of a joint and survivor annuity, including a survivor benefit under a retirement plan; or
  • Disclaim property and powers of appointment.

 Do I Need a Durable POA?

Having a durable power of attorney in place can allow you to avoid guardianship proceedings if you become incapacitated due to illness or injury. In addition, with the designation of a healthcare surrogate, which allows you to choose someone to make healthcare decisions for you if you become incapacitated, you can prevent your loved one from establishing guardianship over you to make these critical decisions on your behalf. Taking these steps allows your family members to seamlessly step into a decision-making role and avoid the delays and costs associated with guardianship proceedings.

Contact Our Office Today for All Your Estate Planning Needs

At Kramer, Green, Zuckerman, Greene & Buchsbaum, P.A., an estate planning attorney can provide you with a full range of estate planning services, including creating durable power of attorney documents where appropriate. In addition, if you lose a loved one, we are here to assist you with all estate-related needs.

We can guide your family through the complicated legal landscape of estate planning law as quickly and efficiently as possible. Call us at (954) 966-2112 or learn more about the legal services we can offer you online. Schedule an appointment to talk to us about your legal needs right away.

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