Incapacity Planning Documents
Frequently Asked Questions
 Your Durable Power of
Attorney
A new Florida Durable Power of Attorney (DPOA) statute will take
effect October 1, 2011. I have removed the old DPOA from my website.
I left the Health Care Surrogate and Living Will documents in place.
If those documents coincide with your values, then they still can be
used by you providing the signing instructions are followed. All
Advance Directives need to follow your values and religious beliefs
as well as be valid under Florida law and should always be drafted
by a qualified Florida attorney. Due to the many choices an
individual needs to make in the new Durable Power of Attorney as of
October 1, 2011, I feel it is important this document be drafted by
a qualified Florida attorney. I do not plan to put the new DPOA on
my website. Please read the articles on my blog about the Durable
Power of Attorney changes.
Florida
Durable Power of Attorney Questions and Answers
as of October 1, 2011
A Durable Power of Attorney is an extremely important and powerful
document. You should consult with a Florida attorney who specializes
in the area of law that currently affects your life. A Durable Power
of Attorney form copied from a book or drafted by a non-lawyer may
not be valid if all the provisions of the new Florida Durable Power
of Act are not complied with. Further, there are now specific
options, duties and powers that you may elect to allow your Agent to
perform. A form document will not be to counsel you on the
importance of these choices. I am an elder law attorney; therefore,
I have prepared a Durable Power of Attorney that is geared for long
term asset protection planning.
Q. What is a Principal?
A. You are the Principal because you signing the Durable Power of
Attorney.
Q. What is an Agent?
A. The person who has been given the authority to act for you in the
Durable Power of Attorney. An Agent is also known as attorney in
fact.
Q. What is a Durable Power of Attorney?
A. A power of attorney is a writing that gives authority to an Agent
to act in your place. Durable means that the power of attorney is
not terminated by your incapacity.
Q. What are the execution requirements for
a Durable Power of Attorney?
A. The document must be signed by you and by two subscribing
witnesses, and it must be acknowledged by you before a notary
public.
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Q. What
are the qualifications to serve as an Agent?
A. The Agent must be 18 years or older; or must be a financial
institution with trust powers that has a place of business in
Florida.
Q. Who should I name as an Agent?
A. This is one of the most difficult decisions that you must make.
The Agent must be trustworthy and understand your intent, estate
plan and desires. Before signing a Durable Power of Attorney, you
should discuss your wishes thoroughly with the person or people you
are considering naming as Agent. You and the Agent must understand
and agree to what you want the Agent to do.
Q. Can I name more than one person as
Agent?
A. Yes. You can name Co-Agents. Unless the Durable Power of Attorney
states otherwise, each Agent will have the independent authority to
act without the other Agent’s approval.
Q. Can I name a successor Agent?
A. Yes. You can name a successor Agent to act if the originally
named Agent dies, becomes incapacitated, is not qualified to serve,
or declines to serve.
Q. Can I replace an Agent? Can I revoke the
Durable Power of Attorney after it has been signed?
A. Yes by revoking the existing Durable Power of Attorney and
executing a new Durable Power of Attorney. You will need to provide
notice to the Agent who is being removed and to all third parties
who may a copy the first Durable Power of Attorney that it has been
revoked. A notice of revocation to a financial institution must
contain the name, address and last four digits of your Social
Security number and must be sent to a Florida officer or manager of
the financial institution. Notice is effective when given, except
that notice to a financial institution is not effective until five
business days after receipt.
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Q. Can the Agent be paid?
A. Only “qualified agents” are entitled to reasonable compensation.
A qualified agent is defined as: 1) your spouse; 2) your heirs and
your spouse’s heirs; 3) a financial institution with trust powers
and a place of business in Florida; 4) an attorney or certified
public account who is licensed in Florida; and 5) a Florida resident
provided that they have never been an agent for more than three
principals at the same time. The constitutionality of this provision
will most likely be challenged within the near future.
Q. When does the Durable Power of Attorney
become effective?
A. Immediately after you execute the document. Florida no longer
allows springing powers which became effective upon the occurrence
of future event, except for military powers that are contingent on
the principal’s deployment.
Q. When does a Durable Power of Attorney
terminate?
A. A Durable Power of Attorney terminates when: 1) you die; 2) you
are adjudicated totally or partially incapacitated by a court unless
the court determines that certain authority given in the Durable
Power of Attorney should remain exercisable by the Agent; or 3) you
revoke the Durable Power of Attorney.
Q. How does an Agent indicate acceptance?
A. The Agent will be considered to have accepted the role as Agent
when that person performs an act that is consistent with the powers
given in the Durable Power of Attorney.
Q. When does an Agent’s authority
terminate?
A. An Agent’s authority to act under a Durable Power of Attorney
terminates when the Agent dies, becomes incapacitated, resigns or is
removed by the court. If the Agent is your spouse, the authority
will also terminate if an action for dissolution of marriage is
filed with the court or if you and your spouse legally separate.
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Q. What are the Agent’s mandatory duties?
A. Florida law provides the following are an Agent’s mandatory
duties:
• Act within the scope of the authority granted in the Durable Power
of Attorney;
• Act in a manner not contrary to your reasonable expectations to
the extent the Agent actually knows them;
• Act in good faith and in a manner not contrary to your best
interest;
• Attempt to preserve your estate plan, to the extent the Agent
knows what it is and assuming that preserving the plan is consistent
with your best interests;
• Act personally, which means that the Agent may not delegate the
power to others, in general;
• Keep adequate records of all transactions made on your behalf; and
• Maintain an accurate inventory of your safe deposit box each time
the Agent accesses it.
Q. What are the Agent’s default duties?
A. Florida law provides that the Agent owes a fiduciary duty to you
and that the Agent’s default duties are:
• Act loyally for your sole benefit;
• Act so as not to create a conflict of interest that impairs the
Agent’s ability to act impartially in your best interest;
• Act with care, competence and diligence exercised by Agents in
similar circumstances; and
• Act with a person who has the authority to make health care
decisions for you in order to carry out your reasonable expectations
to the extent actually known by the Agent and, otherwise, act in
your best interest.
Default duties are modifiable by the terms contained in the Durable
Power of Attorney. For long-term asset protection planning purposes,
these duties must be waived in order to implement the strategies
necessary to preserve and protect your assets.
Q. What is the Agent not allowed to do?
A. Florida law states that Agent cannot do any of the following:
• Perform duties under a contract requiring your personal services;
• Make an affidavit as to your personal knowledge;
• Vote on your behalf in a public election;
• Execute or revoke your Will or Codicil; or
• Exercise powers or authority you may hold in a fiduciary capacity,
such as a Trustee.
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Q. Why can’t I just provide a blanket
statement that “the Agent can do all acts that I could do”?
A. Florida law no allows blanket grants of authority. The Durable
Power of Attorney must spell out exactly which powers the Agent has
the authority to perform. Examples of some of these powers include:
• Banking transactions such as making deposits and paying bills for
you;
• Investment transactions such as buying and selling securities on
your behalf;
• Manage your assets, including both real and personal property and
tangible and intangible property;
• Participate in any business enterprises that you own or have an
ownership interest in; and
• Prepare and file tax returns and pay taxes that are due for you.
Q. What are superpowers?
A. The law also allows the Agent to execute certain specific powers
only if you have placed your initials or signature next to that
specific power. These powers have been nicknamed “superpowers”
because they give the Agent the authority to make changes to your
estate plan. The superpowers include:
• Create an inter vivos (living) trust for you;
• Amend, modify, revoke or terminate a trust created by you or on
your behalf if the trust specifically provides for amendment,
modification, revocation or termination by your Agent;
• Make a gift;
• Create or change rights of survivorship;
• Create or change a beneficiary designation;
• Waive your 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.
Superpowers provide your Agent with tremendous authority to make
decisions on your behalf. This is why it is extremely important that
you make sure the Agent you select understands the importance of
these powers and when to use them. For long-term asset protection
planning purposes, your Agent must have the authority to exercise
superpowers which I have greatly expanded on in the Durable Power of
Attorney that I prepare for my clients. You must initial next to
each superpower in order for the superpower to be exercisable. If
leave the initial box blank, your Agent will not be able to exercise
that superpower.
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Q. What is required for a third party to
honor the Durable Power of Attorney?
A. A photocopy of the original Durable Power of Attorney is as valid
as the original. Financial institutions are no longer allowed to
require you to sign their own power of attorney form. Third parties
may require the Agent execute an Affidavit by Agent stating that you
are still alive; that the Agent’s authority has not been suspended
by an incapacity court proceeding; that the Durable Power of
Attorney has not been revoked; and that the Agent is acting within
the scope of authority granted in the Durable Power of Attorney.
Q. How
long does a third party have to accept or reject the Durable Power
of Attorney?
A. The law provides that a third person must accept or reject the
Durable Power of Attorney within a reasonable time. If the third
person rejects the Durable Power of Attorney, they must state in
writing the reason for the rejection. If the third party is a
financial institution, they have four business days to accept or
reject a Durable Power of Attorney.
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Q. What is an opinion of counsel?
A. A third party may request an opinion of counsel before accepting
a Durable Power of Attorney if there is a legitimate question
regarding the validity or interpretation of the document as to any
matter of law. If your Durable Power of Attorney was executed in
another state, an opinion of counsel may also be requested from an
attorney in that state that the document was properly executed and
valid. You will be required to pay for all requested opinions of
counsel.
Q. What happens if a third party refuses to
honor the Durable Power of Attorney?
A. A third party who improperly refuses to honor a Durable Power of
Attorney is subject to a court order mandating acceptance of the
Durable Power of Attorney and will be liable for damages, including
reasonable attorney’s fees and costs.
Q. Is the Durable Power of Attorney I
signed before October 1, 2011 still valid? Is the Durable Power of
Attorney I signed in another state still valid?
A. The answer to these questions is maybe, which is not an answer
that I like to give. The law provides that a Durable Power of
Attorney that was executed prior to October 1, 2011 remains valid if
its execution complied with state law at the time of execution
Printable Version
 Your Medical Directives
How does one draw up a health care proxy?
People should contact an attorney who is
skilled and experienced in this area. Many hospitals and nursing
homes also provide forms, as do some public agencies.
What is a living will?
Living wills are documents that give
instructions regarding treatment if the individual becomes
terminally ill or is in a persistent vegetative state and is
unable to communicate his or her own instructions. The living will
states under what conditions life-sustaining treatment should be
terminated. If an individual would like to avoid life-sustaining
treatment when it would be hopeless, he or she needs to draw up a
living will. Like a health care proxy, a living will takes effect
only upon a person's incapacity. But a living will is not
necessarily a substitute for a health care proxy or broader
medical directive. It simply dictates the withdrawal of life
support in instances of terminal illness, coma or a vegetative
state.
What is a health care proxy?
A health care proxy is a document executed
by a competent person (the principal) giving another person (the
agent) the authority to make health care decisions for the
principal if he or she is unable to communicate such decisions.
Why have a health care proxy?
If an individual becomes incapacitated, it
is important that someone have the legal authority to communicate the
individual’s wishes concerning medical treatment. This is especially true if the
individual and family members disagree about treatment. By executing a health
care proxy, principals ensure that the instructions that they have given their agent will be carried out in the event of such
disagreement.
Should a medical directive accompany the
health care proxy?
Yes. A medical directive provides the agent
with instructions on what type of care the principal would like. A
medical directive can be included in the health care proxy or it
can be a separate document. It may include specific instructions
concerning the initiation or termination of life-sustaining
treatment or a broader statement granting general authority for
all medical decisions that are important to the principal. The
health care proxy appoints an agent to represent the principal and
a broader medical directive provides guidance in less serious
situations.
When does a health care proxy take effect?
In general, a health care proxy takes
effect only when the principal requires medical treatment and a
physician determines that the principal is unable to communicate
his or her wishes concerning treatment. How this works exactly can
depend on the laws of the particular state and the terms of the
health care proxy itself. A medical directive, whether part of a
health care proxy or separate, will be followed when you can no
longer direct medical providers yourself.
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What if the principal regains the ability
to communicate his or her own decisions?
If the principal becomes able to express
his or her own wishes at any time, he or she will be listened to
and the health care proxy will have no effect.
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Who should have a copy of the health care
proxy?
The agent should have the original
document. The principal should have a copy and the principal's
physician should keep a copy with that individual's medical
records.
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Who should be appointed as a health care
agent?
Since the agent is going to have the
authority to make medical decisions in the event the principal is
unable to make such decisions for him- or herself, the agent
should be a family member or friend that the principal trusts to
follow his or her wishes. Before executing a health care proxy,
the principal should talk to the person whom he or she wants to
name as the agent about the principal's wishes concerning medical
decisions, especially life-sustaining treatment.
Articles to review
Questions to ask the doctor
End of life decisions |
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