A Florida durable power of attorney is a really powerful document that can allow a person to act for you and to make decisions about your finances and health issues. There are many mistakes you can make regarding a durable power, but in this entry I cover what I know are the top three mistakes people make when looking to do a Florida durable power of attorney.
First, let’s look at some definitions as to who is signing the power and who is acting under the power. You are the principal in a power of attorney if you are the person who will sign the durable power of attorney in favor of someone to act on your behalf. The person who will be acting on your behalf and is designated in the power, is the agent or attorney-in-fact. Of course, being an attorney-in-fact is not the same thing as being an attorney, unless the person who is designated as an agent happens to be a licensed attorney.
Mistake #1 – Lack of Legal Capacity to Make a Durable Power of Attorney
As a principal you must have legal capacity to sign a durable power of attorney. This means that you must have the mental capacity to understand what you are doing, the decisions you are making under the power and the consequences of the appointment under the power.
Questions as to the capacity of a person to sign a durable power of attorney may be present when, for example, the person has had a stroke, has the beginnings of dementia or Alzheimer. In the worst case scenario, the principal is already incapacitated and a determination of mental capacity may be difficult.
It is important to have a durable power of attorney and other legal documents in place before we actually need them. That’s because it is impossible for any of us to know if we will suffer health issues which may incapacitate us, to the point where we lose the ability to make these provisions in a timely manner.
I recently had a consultation related to a divorce where the prospective client had indicated that the spouse was willing to sign but could not sign. In asking additional questions, it appears that the spouse had health and mental issues that prevented them from signing. Yet, there appeared to be a document described as having been signed by witnesses and notarized, but not signed by the principal (the other spouse). To me this is clearly not a valid document as described, regardless of whether it is titled as power of attorney, which brings us to the next mistake.
Mistake #2- Powers of Attorney Not Signed by the Principal and Signed by the Agent
As a principal, you must sign a durable power of attorney. In addition, two persons must sign as witnesses to your signing the durable power of attorney. A notary must acknowledge your signature. On the other hand, an agent cannot sign the durable power of attorney, not even as a witness.
These types of mistakes are not common when an attorney prepares your documents since we also provide detailed instructions for signing or assist you in a signing appointment.
Mistake #3 – Mistaking a Florida Durable Power of Attorney for a Will
Your Florida durable power of attorney will be effective so long as you have not passed away. A durable power of attorney ceases to have validity once the principal has passed away . As a result, once you pass away, your agent can no longer act for you, such as, for example, transfer property to your heirs.
This is why you should also have a testamentary will in addition to a durable power of attorney. A testamentary becomes effective one the maker (the testator) is deceased.
An agent using a durable power of attorney after the principal has passed away maybe opening themselves to liability.
Durable powers of attorney can be used unscrupulously if an agent is not carefully chosen. Florida had the Department of Elder Affairs has Elder Protection Programs that can help you or help family members protect elders.
If you have any questions about durable powers of attorney, or last wills and other life documents, call us at 305-710-9419.
