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Durable Power of Attorney

A Durable Power of Attorney is a written document which allows a person (the “principal”) to designate another individual (the “attorney-in-fact” a.k.a. “agent”) to transact his or her financial business. Unless otherwise stated, the Durable Power of Attorney applies to all property owned by the principal. What is important about this type of Power of Attorney is that it remains effective even when the principal becomes incapacitated.
Depending on the rights and longevity of such rights that a principal wishes to transfer to another individual, a Durable Power of Attorney can be broad or narrow and should be customized by an Elder Law attorney to ensure that the document complies with Florida law and accurately reflects the principal’s issues. Hiring a competent Elder Law specialist to draft your Durable Power of Attorney will save you from potential and complex processes in the future (such as setting up a guardianship) that come as a result of poorly prepared Powers of Attorney.

Allow the Attorneys at the Miller Elder Law Firm, PA to help you accomplish your planning goals. Contact our Elder Law attorneys at our Gainesville, Florida office by calling (352) 379-1900 or contact us online (millerelderlawfirm.com) to obtain a free initial consultation.

How does a Durable Power of Attorney work?

This type of Power of Attorney is perhaps the most versatile because of its potential utility to individuals who lack capacity after executing the document. Durable Powers of Attorney are intended to address cases where the following applies:

● The principal intends for the agent to have authority if the principal becomes incapacitated.
● The principal intends for the Power of Attorney to take effect immediately and to remain in effect regardless of the principal’s future disability.

The Durable Power of Attorney should be in writing and be signed by the principal in the presence of two adult witnesses and a notary public. The attorney-in-fact named in a Durable Power of Attorney may transact business for the principal as soon as the document is signed and until the principal dies, revokes the power, or is determined by a court to be incapacitated(in that case, the court may still authorize the agent to act). To ensure that the Durable Power of Attorney remains effective even when the principal becomes incapacitated, it must contain the words, “This Durable Power of Attorney is not affected by subsequent incapacity or disability, either mental or physical, of the principal except as provided by statute;” or similar words that show the principal’s intent that the authority conferred is exercisable despite the principal’s subsequent incapacity or disability.

Honoring a Durable Power of Attorney

Individuals and business institutions, such as banks, that are presented with a valid Durable Power of Attorney must honor the attorney-in-fact’s authority to transact business for the principal or, under the new statute effective October 1, 2011, must reject the Power of Attorney form within a reasonable time, if grounds exist for refusal.
A third party who unreasonably rejects a Power of Attorney is subject to court order mandating its acceptance, and is liable for damages including attorney’s fees and costs. Any individual or business institution that, in good faith, relies on the agent’s apparent authority in the Durable Power of Attorney, is not liable to the principal for transacting business with the attorney in fact.

Why You Should Contact The Miller Elder Law Firm, PA

When drafting a Durable Power of Attorney, the Elder Law Attorneys at the Miller Elder Law Firm pay special attention to the present and future needs of an individual. It is common nowadays for people to download a Durable Power of Attorney form online; however, only a specialist in Elder Law can make sure that your plan is custom tailored to meet your needs and validly binding in Florida. Allow our experience in the field and our genuine interest for your well-being to work on your behalf to ensure your planning goals are accomplished.

Contact the Miller Elder Law Firm today for an initial telephone consultation, free of charge, by calling our Gainesville, Florida office at (352) 379-1900.