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Power of Attorney: Who Not To Choose

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Carefully Select Your Power Of Attorney Agent

by Shannon Miller, Esq.

Though many of us fight aging, we know it’s inevitable. We all wish to move through the process of aging with a sense of security that our wishes will be carried out properly.  We fear the consequences of aging like loss of mental clarity, chronic health conditions and the inability to live life independently.   These situations can leave us unable to handle the business of life: paying bills, managing investments, and making key financial decisions .  Having a well thought out plan listing who you want to act in your stead (your agent) and the guidelines you wish to be followed are outlined in a durable power of attorney document.

Durable Power Of Attorney Defined

A durable power of attorney is a written legal document whereby a capacitated adult appoints someone to act as their agent to manage their financial affairs. Once executed, these powers exist immediately, meaning the Durable Power of Attorney can be used the same day it is signed. Durable means that should there come a time when you become unable to manage your affairs due to incapacity or other physical disability , then the power of attorney continues to be effective. Your disability or inability to manage your financial affairs will not cause the durable power of attorney to be ineffective . The agent must act pursuant to the terms, conditions and limitations that you designate in your durable power of attorney document and the agent has certain statutory requirements as a fiduciary acting on your behalf and in your best interest.

My Insights On Selection Of An Agent To Serve Under Your Durable Power Of Attorney

You may think family members like your spouse or adult child would be your best choice, but that is not always the case.  I have worked with many families, health care professionals and financial institutions regarding agent selections for both financial and medical decision-making, and can offer you some simple insights from my experience.

Worst Choices for Durable Power of Attorney

Do your homework when selecting someone for this fiduciary role. Do not choose anyone who has a history of money problems or always appears to be in financial stress. Those who have trouble paying bills, have a low credit score,
or who are not great with numbers may not be your best choice to be responsible with your money. The risk for financial exploitation is greater when you pick someone who struggles with money. You may also wish to choose someone who is under 55 years old , as that is the average age where we see financial acuity begin to decline.

I recommend identifying one or two standbys in each of these roles in case your primary selection becomes unable to act on your behalf.

Your #1 Goal

The #1 goal of using the durable power of attorney is to avoid having to establish a guardianship. If you do become incapacitated without having assigned an agent under a durable power of attorney, the court will step in to appoint a guardian. This process costs somewhere between $7,000-10,000 in a simple case and the sky is the limit when there is conflict among family members as to who should serve. These figures do not take into account the fact that the Court will be deciding how your funds are used, and the costs that will be incurred while the guardianship is pending.

The durable power of attorney laws change very frequently with the last big change being in 2014. It is a good idea to have your estate planning documents reviewed every 3-4 years. Our office does these reviews and initial consult at no costs to you. We never suggest people update their plan if the current version is up to date, but we will tell you if there are problems with your plan. Often we review estate plans obtained from the internet, which do not comply with Florida’s statutory requirements. We would much prefer to fix it for you rather than your family struggle with conflict and litigation at the time of your death.

How Miller Elder Law Firm Can Help

We have helped hundreds of clients establish solid durable power of attorney and health care surrogate documents that meet all laws and your wishes.  We also have a current version of our designation of health care surrogate and living will available on this website at no cost. We believe it is important that everyone have these documents in place should illness strike.

If we can help you and your family, please contact us at 352.379-1900 or complete the form below and we will contact you.

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