A pencil pointing to the text on the papper

Durable Power of Attorney (DPOA) is a legal document that allows a person to grant another person the authority to act in legal and financial matters on their behalf. The laws regarding DPOAs in Florida can be found in Chapters 709.2101-709.2402 of the Florida Statutes.

Who is a Principal and Agent?

The person granting the authority is known as the “Principal,” and the person receiving the authority is called the “Agent.” A DPOA takes effect as soon as it is signed by the principal and does not terminate if the principal becomes incapacitated, hence the term durable.

What is Incapacity?

Incapacity is defined as the inability of an individual to take those actions necessary to obtain, administer, and dispose of real and personal property, intangible property, business property, benefits, and income. Many people choose to have a DPOA as a means to avoid being placed under a guardianship.

Requirements for a Valid DPOA

The principal must be competent and aware of what they are doing when they sign the DPOA. The principal needs to understand the level of authority they are granting by signing the document and to whom they are granting the DPOA. To make sure that this is the case, two witnesses are required to be present and sign along with the principal to verify that this is in their intended purpose and the document must be notarized by a legally appointed notary public. This is to ensure that the principal is not authorizing a DPOA under fraudulent circumstances.

Can I control what my agent can do on my behalf?

The scope of the authority granted by a DPOA can be either broad and encompass most of the issues in a principal’s life or be limited and narrow in its effect. Most DPOA’s tend to cover most financial and legal situations so that the agent can properly deal with them promptly as they arise. It is always essential for the principal to word the document precisely how they want it so that they are neither granting too much or too little power to their agent depending on the situation.

There are certain specific actions that an agent cannot take unless expressly given to them by the principal in the document itself. These can include creating trusts and create or change a beneficiary’s status. A DPOA is terminated if its authority is revoked by the principal, the principal dies, if the reason for its creation is completed or if the time frame it was granted under expires.

What About a “Springing” Power of Attorney?

DPOA’s are the norm in Florida today because of their definite nature. Before September 30th, 2011, a principal could have what was referred to as a “Springing” Power of Attorney or SPOA. An SPOA was designed and written to only be executed at the point where the principal became incapacitated, not at its signing. This afforded many people assurance that their agent would not meddle in their affairs which they could handle themselves until they were unable to do so.

Why was a springing power of attorney banned?

The Florida legislature banned the creation of SPOA’s after October 1st, 2011, because this type of POA was causing more problems than it solved.

First, there was the problem that there was often a time delay between the incapacitation of the principal and the agent getting approved to exercise their power under the SPOA. This was usually due to needing the incapacitation verified by a doctor and having that verification approved.

Secondly, there was the issue of getting the doctor to release the verification of incapacity due to HIPAA privacy rights.

Lastly, the definition of “incapacity” was not a concrete thing and was often a point of debate. For these reasons, a Durable POA is the legally allowed variant in Florida.

Who should have a Durable Power of Attorney?

Accidents and illness can come out of nowhere and leave a person unable to handle their affairs. Due to the numerous problems and legal issues that can arise if someone becomes incapacitated, every adult should strongly consider getting a DPOA.

You should only name people who you trust entirely to serve as an Agent under your DPOA. You should also talk to the people you want to act as your Agents so that they understand your wishes and act accordingly.

If you become incapacitated in Florida without a Durable Power of Attorney in place, then there is a good chance that the Court will decide who oversees your affairs through the guardianship process. Having a DPOA is an essential part of any estate plan and, most importantly, it allows you to decide who will handle affairs if you become incapacitated.