ESTATE PLANNING LAW
ADVANCED DIRECTIVE
ENSURE YOU HAVE A SAY IN YOUR END-OF-LIFE DECISIONS
A “power of attorney” can be a significant instrument in protecting the assets of a vulnerable adult from perpetrators.
A power of attorney is a written instrument by which a principal gives authority to an attorney-in-fact to act on behalf of the principal.
DURABLE POWERS OF ATTORNEY
A durable power of attorney cannot be delegated to a different party and is effective during the principal’s lifetime unless revoked by the principal.
Unless otherwise stated in the durable power of attorney, the powers granted the attorney-in-fact under the durable power of attorney extend to all of the principal’s interest in property, whether it is real property (including homestead real property) or personal property.
Any person who is over 18 years of age and of “sound mind” may act as an attorney-in-fact under a durable power of attorney.
A financial institution with trust powers may act as an attorney-in-fact under a durable power of attorney if it has a place of business in the state where the durable power of attorney is executed. Certain charitable organizations may also act as attorney-in-fact under a durable power of attorney.
The attorney-in-fact is authorized to perform, without court approval, any act specifically detailed in the durable power of attorney. However, Florida statutes provide for certain acts that the attorney-in-fact may not perform.
The powers granted under a durable power of attorney can be abused. You should not prepare a durable power of attorney without careful planning and legal counsel.
Any power of attorney executed before October 1, 2011, should be reviewed to determine if it complies with Florida law.
Key Provisions of The Florida Power of Attorney Act effective October 1, 2011:
- All durable powers of attorney signed on and after October 1, 2011, will be immediate. As such, your agent will have the power to act as soon as you execute the document. It is not necessary to establish that you are incapacitated for your agent to act.
- Florida residents have routinely named successor agents in their Florida durable power of attorney. The new law officially recognizes that backup agents may be included in the durable power of attorney. If a principal names co-agents, each one can act alone without the consent or knowledge of the other, unless the principal specifies otherwise in the instrument.
- Under the previous version of the law, only an original durable power of attorney could be honored. The new law allows for photocopies and electronic copies of the durable power of attorney to have the same validity as an original.
- The principal must give the agent authority to do certain acts, and such authority must be specifically initialed by the principal.
- “Blanket” powers to agents are no longer permitted.
- Revoking the durable power of attorney requires the principal to record a revocation with the Clerk of the Court in Public Records, send copies of the revocation to all financial institutions, and formally notify the agent of the revocation.
- Durable powers of attorney are not forms – they are legal documents. You must understand your power of attorney and what it does and does not authorize before you sign it. There is no statutory form for the durable power of attorney in the State of Florida, as the legislature recognizes that every individual has different needs.
“SPRINGING” POWERS OF ATTORNEY
Effective January 1, 2002, Florida law authorized the creation of a durable power of attorney that can be exercised upon the principal’s lack of capacity to manage property.
Under prior law, the durable power of attorney was always exercisable upon execution by the principal. This amendment to the statute made it easier for a principal to execute a durable power of attorney and have it become effective only when needed. Recent changes in Florida law effective October 1, 2011, have made new “springing” powers of attorney no longer available in Florida. “Springing” powers created before October 1, 2011, may be valid, but should be reviewed by an attorney.
DEPLOYMENT CONTINGENT POWERS OF ATTORNEY
A principal may execute a durable power of attorney that is not intended to be used until some time in the future.
In this case, the principal may execute the document and have it held in escrow with the attorney under specific instructions as to its delivery to the attorney-in-fact.
LIMITED POWERS OF ATTORNEY
The durable power of attorney may be drafted as broadly or narrowly as the principal desires.
In certain situations, it may be beneficial to give an individual specific authority to perform a narrow scope of activities in the event that the principal is not able to perform such action.
HEALTHCARE ADVANCE DIRECTIVES
Healthcare Surrogates. A principal may execute a document naming a surrogate in the event that the principal is unable to make his or her own healthcare decisions.
This helps to avoid family pressure at a difficult time and helps to prevent the need for court intervention to make personal family decisions.
Because of the comprehensive nature of the healthcare surrogate law, the healthcare surrogate is provided with powers that are enforceable by the court. The law also provides for limited liability for both the healthcare surrogate and the healthcare provider when the healthcare surrogate provides informed consent to the healthcare provider and all parties are acting in good faith.
A designation of healthcare surrogate is a useful estate planning tool and it should be part of every individual’s estate plan.
LIVING WILLS
A “living will” is a written declaration by an individual that he or she does not want certain medical procedures utilized to keep him or her alive under certain specified conditions.
The Florida statue that applies to these types of declarations allows an individual to commit to writing his or her desire to have life-prolonging measures withheld or withdrawn when the application of such procedures would serve only to artificially prolong the process of dying.
Each person should consider the options available to them and have a living will prepared by an estate planning attorney that implements the individual’s desires concerning the use of life-prolonging procedures when he or she is unable to vocalize his or her intentions in this regard. Powers of attorney and advanced directives are a crucial part of your estate plan.
Your better legacy depends upon the accuracy and completeness of your plan.
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