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.
Top
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.
Top
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.
Top
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.
Top
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.
Top
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.
Top
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
Crisis Times Require
Crisis Planning
In these economic
times you have to do everything you can to protect every dollar you have
left. When a loved one develops chronic illness such as Alzheimer’s,
Parkinson’s, or stroke, the emotional and financial costs to the
individual and family can be catastrophic. Qualifying for Medicaid, VA
and other government benefits becomes necessary when middle class
families face nursing home bills from $6,000-10,000 plus per month. My
office helps families stricken with chronic illness and disabilities
manage situations considered unmanageable.
We have to think more strategically in order to work through the crisis
to make the very best use of our assets and find additional resources to
help defray the long term care costs. VA benefits for veterans and
surviving spouses of deceased veterans can be financial lifesavers where
appropriate. Most veterans and surviving spouses of deceased veterans
are totally unaware of benefits available, particularly pension. We can
integrate our planning for immediate VA benefits followed by Medicaid
when needed. Careful planning allows the family to develop and maintain
a sense of direction so that we can manage our way through difficult
times rather than worry our way through them.
For many years I have welcomed the opportunity to help families deal
effectively with the potentially devastating loss that comes with
disability and chronic illness by turning that loss potential into an
effective plan for the best care possible, peace of mind and protection
of their hard-earned life savings. Even with recent law changes we are
most often able to save nearly all assets for a married person and at
least half for a single person. I look forward to the opportunity to
continue this work with you.
Nancy Teten of University of South Florida
Alzheimer’s Center shared thoughts and ideas on caregiver guilt, anger
and resentment at a recent seminar.
Passing along some of her tips,
and other ideas I’ve learned from the Bob DeMarco site at
www.Alzheimersreadingroom.com:
YOU, the caregiver, are now the
patient’s BRAIN. Right or wrong you become the brain for the patient as
long as they live. That doesn’t mean you do every single thing for the
patient. Let them do what they can, as long as they can. If you take
over completely, remember they cannot relearn to do something you are
now doing for them. They will be much happier if they can continue
doing some remembered tasks. Focusing on what they can do, take over
what they can no longer do. In this way you respect their capabilities
and feelings.
Your own feelings impact the
person you are caring for. They can sense when you are angry with them,
especially when they hear a false sweetness in your tone. They
interpret the expression in your face and your emotions and they mirror
what you have become because that’s how they see you. Then they become
intractable and stubborn---even more difficult to assist. Try to manage
your facial expression and emotions to avoid such behavior.
Your face can reveal any
unresolved conflicts with this person that could come back to haunt
you. Or, you might remind the patient of a person they like, or maybe
don’t like. If you can discern this, take some action to resolve it.
Take care of yourself, or you
cannot take care of your loved one. Schedule some relaxing time, let a
family member or friend step in and give you a few hours to get away.
Do one thing nice for yourself every day. You are not the only one
capable of dealing with the patient. When you are not rested and at the
top of your abilities, you may become depressed, and complicate the
situation. Guilt and anger follow from the sense that you are not
“doing enough” because your mother or father fails to respond to your
loving care and get better. Always remember, you cannot change the
progression of this disease.
Appreciation and encouragement
from family and friends helps far beyond what they realize; but as time
goes on, your resentment grows as they may unconsciously abandon you.
It is so easy to lose your own life, so make an effort to stay
connected. Get out and do normal things with friends and family.
Consider another big source of
guilt: your loved one says to you, “promise me you will never put me
in a nursing home.” I have heard a client’s son or daughter tell me
they made such a promise and now they cannot care for the parent. This
guilt must be resolved and reality must be faced when twenty-four hours
a day, seven days a week nursing care becomes necessary. Some can
manage such a schedule for a short time, but for long term care it
becomes a burden beyond expectation. Then the caregiver often
predeceases the patient. When the patient has long forgotten even your
name, you must look at the level of expectation you have of yourself and
modify those expectations.
Accept yourself and your
limitations. Maybe you did not make the best decisions sometime
during the day....maybe you didn’t get much or any sleep that night
....you find yourself saying “I don’t like what I’ve become”. Find a
support group, or seek professional help. Recognize that your feelings
don’t have to control your actions.
You can be angry that your loved
one is in the grip of this devastating disease. You can be resentful
that you are the one in the family expected to take care of this
person. You can feel guilty because you are angry and resentful, even
though you do love the person. Just remember this is a common
experience no matter your age or relationship. Get help before the
experience changes you into someone you wouldn’t like.
Anger and resentment can cloud
your judgment when it comes to thinking about the expensive path the
patient travels. Do you want to let your loved one’s assets erode,
maybe even slip away, without making an effort to protect their life
savings? When the money is gone, the patient becomes dependent on a
government system that is in the throes of radical change, probably not
for the better. Successful planning for this protection will build your
self-esteem and temper guilt, anger and resentment. |
