When developing your estate plan, advance care directives are just as important as your will or trust. Designating a power of attorney can provide extensive support throughout your life.
Types of Power of Attorneys
A power of attorney (or POA) is an advance care directive that grants someone – called an agent – the power to make decisions on your behalf. These decisions are usually related to business and finance, but older forms can also include medical decisions.
Unlike a living will, you do not have to be incapacitated in order for your power of attorney to come into effect – in fact, Florida law no longer allows a power of attorney that only comes into effect if you become incapacitated (formerly known as springing powers of attorney). You may establish a POA if you’re recovering from surgery or about to embark on a long international trip, for example.
There are different types of POAs. A limited power of attorney comes into effect as soon as it’s signed, but may only be designated for a specific task or brief period of time (like while you’re on that international holiday). Limited POAs end if you become incapacitated. A durable power of attorney however, would still remain in effect.
It’s important to remember that when you pass away, the authority of your power of attorney ends and the authority of your personal representative begins. You can grant these roles to the same person, though.
Choosing a Power of Attorney
When it comes to estate planning, there are several roles available to those who will manage your estate should you become incapacitated, and manage your estate after you pass: your power of attorney, healthcare surrogate, and personal representative (also known in some states as the executor).
For all of these roles, you should choose an individual who is honorable and trustworthy. However, for your power of attorney, financial soundness and responsibility is also key. Depending on your designation, your power of attorney may have the authority to pay your bills, file your taxes, or even sell your home.
Remember that your personal representative, power of attorney, and healthcare surrogate can all be the same person, but they do not have to be. For example, you may choose a close loved one for your healthcare surrogate, as this role requires emotional and personal conversations, and a trusted business partner with strong financial acumen for your POA. Additionally, as long as you are of sound mind to do so, you always have the power to choose and change who should fulfill these roles.
Creating a Power of Attorney
In Florida, any adult over 18 and of sound mind can create a power of attorney document. A power of attorney must be signed in the presence of two witnesses and notarized. Your agent must also be over 18 years old. You can choose a successor agent, should your initial agent pass away or be unable to fulfill their duties, or multiple agents for select responsibilities.
The agent must be a natural person who is 18 years of age or older or a financial institution that has trust powers, has a place of business in this state, and is authorized to conduct trust business in this state.
– Florida Statutes, 709.2105
While you’re not legally required to write a power of attorney with an attorney, doing so can help ensure your document is valid and aligned with your wishes. As with all estate planning documents, it’s also critically important to properly store your power of attorney, so that it can be safeguarded and found when needed.
Interested in creating or finetuning your power of attorney? We’re here to help.
