Elder Law: Durable Power of Attorney


A Power of Attorney is a legal document delegating authority from one person to another. In the document, the maker of the Power of Attorney (the “principal”) grants the right to act on the maker’s behalf as their agent.

What authority is granted depends on the specific language of the Power of Attorney. A person giving a Power of Attorney may make it very broad or may limit it to certain specific acts.

A Power of Attorney terminates if the principal becomes incapacitated, unless it is a special kind of Power of Attorney known as a “Durable Power of Attorney.”

A Durable Power of Attorney remains effective even if a person becomes incapacitated. However, there are certain exceptions specified in Florida law when a Durable Power of Attorney may not be used for an incapacitated principal. A Durable Power of Attorney must contain special wording that provides the power survives the incapacity of the principal. Most Powers of Attorney granted today are durable.

A Durable Power of Attorney should be a part of every Florida resident’s estate plan. It authorizes someone (the “agent”) to manage the financial affairs of another (the “principal”). The Durable Power of Attorney may also impact on Florida Medicaid planning, as an agent may need certain powers in order to help the principal achieve eligibility for Medicaid long-term care benefits.

Effective Oct. 1, 2011, Florida’s Durable Power of Attorney law changes. These changes are intended to provide additional protection for Florida residents from overreaching by authorized agents and from financial abuse.

The Durable Power of Attorney is a powerful and complicated legal instrument. It is not a simple form.

Florida does not have a statutory form allowing people to simply fill in the blanks and sign.  Attempting to adapt generic forms found online and in office supply stores is unwise and a potentially costly mistake. Since the Durable Power of Attorney is usually used by the agent only when the principal is incapacitated or unavailable, any legal deficiency or inadequacy will likely  be discovered too late – i.e., when the  principal is not capable of creating and signing a new instrument.

To ensure that your Durable Power of Attorney achieves your goals and protects you from financial abuse, consult with an attorney at Caserta & Spiriti.

Practice Area Attorneys

Robert Mellinger

Robert L. Mellinger, has over 33 years of experience as an attorney, having been admitted to practice law in California, New York, Pennsylvania and Florida as well as several U.S. Federal Jurisdictions, including the Supreme Court of the United States of America.

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