Durable Financial Power of Attorney

A Durable Financial Power of Attorney (POA) is an instrument in which you designate an individual that you trust to act as your Agent and make financial decisions for you in the event you are unable to do so for yourself.  The word “Durable” means that this document will stay in effect even if you become incompetent, however you do NOT need to be incompetent or incapacitated for your Agent to act.

Without a Financial POA, your spouse has no inherent right to make financial decisions on your behalf or have access to your individual financial or retirement accounts (IRA, 401k, etc.). The only legal alternative to a power of attorney is a guardianship proceeding where a judge will appoint a guardian who may not be the family member or trusted friend the person would have otherwise selected for themselves.

In Florida, you are not able to create springing General Powers of Attorney, however there are work-arounds. Florida law requires additional signatures for the special election of certain powers (superpowers) given to an agent including: the power to create an intervivos trust, power to amend, modify, or terminate trust, power to make gifts, power to change beneficiaries, and power to disclaim property or power of appointment. Understanding what each power does and its importance to your estate plan will allow you to draft the best possible document for your unique situation.

All powers of attorney are not created equal. If you don’t have a well-drafted power of attorney, the consequences may be the inability to protect your house and life savings from the cost of long-term care.

Designation of Health Care Surrogate (Medical POA)

In Florida, the Durable Power of Attorney for health care decisions is called the Designation of Health Care Surrogate. This will allow your surrogate to make or communicate medical decisions for you if you are unable to do so for yourself. This document can be a springing document as well, meaning that it can go into effect after you are determined to be incapacitated, if that is your wish and intention. 

Your health care surrogate may also access your protected health information to gather information from your health care provider about your medical condition to make an informed decision about your health care needs.