Your Options for Choosing a Power of Attorney in Florida
In Florida, there are three basic kinds of powers of attorney: durable, nondurable, and springing. You should discuss with your elder law attorney which of these options are best for you.
First, the most common type of power of attorney is the durable power of attorney. These are recognized in all fifty states as well as the District of Columbia. If you have moved to Florida, it is recommended that you have a power of attorney drafted by a Florida elder law attorney.
The durable power of attorney is exercisable when executed. It can be used when a person is fully competent or when the person signing the power of attorney becomes incapacitated, which makes a durable power of attorney an easy and affordable alternative to the appointment of a guardian. It also enables one to avoid the lengthy and potentially humiliating court proceedings required in having to prove mental incapacity.
The durable power of attorneys’ effectiveness ends in the event the person executing the power of attorney passes away. However, it is possible to specify certain estate planning actions for the attorney-in-fact to take in the event the person signing the power of attorney becomes disabled. For example, the executing party may want to reduce his or her estate tax liability or benefit from the present federal gift tax exclusion. In these circumstances, the power of attorney could include language instructing the attorney-in-fact to execute a gifting strategy. Your elder law attorney should be familiar with the specific wording required under Florida statute that must be included in order for a document to constitute a valid durable power of attorney.
Sometimes, the fact that a durable power of attorney becomes exercisable when executed is problematic. For example, the principal may want the attorney-in-fact to control his or her business only if the principal becomes incapacitated but otherwise, does not want to allow the attorney-in-fact to have immediate control. Your elder law attorney should be able to discuss these legal ramifications with you.
Second, the nondurable power of attorney does not grant the attorney-in-fact the ability to act on the principal’s behalf if he or she becomes ill or incompetent. The nondurable power of attorney usually comes into play when the principal needs someone to take care of a specific task; for example, completing a business transaction while the principal is out of town or out of the country. It is often used for the sale of a specific piece of real property if the principal cannot attend the closing. It will normally end either on a certain date or upon the completion of an event. The document can state an actual date that the power of attorney will terminate.
Third, the springing power of attorney is uncommonly used. Difficulties can arise in executing the springing power of attorney because its execution is contingent upon a specified event. Our attorneys do not usually recommend the use of the springing power of attorney.
If you believe that you need a power of attorney or have any questions about an already executed power of attorney, do not hesitate to contact Rooth Law Group for a consultation today.