Durable Power of Attorney
Imagine that you become incapacitated - unable to handle your financial affairs- following an accident, illness or disability.
Does the financial management of your life just stop?
No, of course not if you had planned for the future by signing a Durable Power of Attorney. The benefits of a Durable Power of Attorney are:
- You choose a trusted, responsible person to make your financial decisions during your incapacity.
- You choose another trusted, responsible person as an alternate financial decision-maker in the event your primary financial decision-maker is unable to act.
- You avoid becoming involved in the Court supervised proceeding called guardianship which is a public proceeding that can be expensive.
- You maintain privacy in your life. The Durable Power of Attorney is a private document that is not filed so your financial matters remain confidential.
- The person you name as your financial decision-maker does not become an owner of your assets. This protects you and your assets in the event your financial decision-maker gets a divorce, files bankruptcy or causes an accident and is sued.
When is the opportune time for a person to meet with an elder law attorney to have a Durable Power of Attorney prepared?
- Upon becoming a legal adult.
- When he/she is not under stress and can think clearly.
- When he/she can communicate in a way that can be understood whether verbally, in writing, through sign language or through an electronic device.
- Before going on a trip or vacation.
- Before going into a hospital or rehabilitation facility for a procedure or treatment.
- The client must be mentally aware of his/her assets, income, liabilities, and family relationships (not just be able to hold a pen in their hand and sign their name).
- The client should be willing voluntarily to make a Durable Power of Attorney and should not do it under duress.
Do I need an attorney to prepare a Durable Power of Attorney?
The simple answer is ‘yes’ if you want it to be done correctly the first time. This document should be tailored to your current needs, future needs, types of assets and income you own, your family dynamics and other issues that are unique to you. Your financial decision-maker can only take the actions that are specified in the document. If you prepare a Durable Power of Attorney from the internet or a stationary store or you go to an attorney that is not an estate planning lawyer or an elder law attorney it is very likely that the document will not work for you when you need it the most. If you are incapacitated at the time that it is determined the Durable Power of Attorney will not permit certain actions to be taken then it is too late to revise the document. This document is an investment in your future.
When does a Durable Power of Attorney become effective?
In Florida a Durable Power of Attorney becomes effective immediately - as soon as the document is signed. Additionally, a copy is as effective as the original. Therefore, think carefully about whether you want to give the original or a copy to your named financial decision-maker or, just tell them where you are keeping it in the event you become incapacitated.
The person you designate as your financial decision-maker is a ‘fiduciary’ which is a person held to a high standard of care. I welcome the opportunity to guide and advise your fiduciary about their responsibilities and how to fulfill them.
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