James Barrett, Esq.
James Barrett has been counseling clients for over 12 years in estate planning, prenuptial agreements and small business formation. He is a highly decorated veteran of the US Navy. He completed a 30-year career as an air traffic controller and union advocate. He has bachelor’s degrees from Florida International University and the National Labor College. He is a graduate of the University of Miami School of Law (2010) and has been in private solo practice ever since. He is admitted to the Florida Bar and his practice is virtual serving all the citizens of Florida.
Everyday, You make significant decisions concerning your assets, healthcare, finances, and other important aspects of your life every day. But what if you were unable to do so for any reason?
A durable power of attorney (DPOA) is the most powerful tool in planning for physical or mental incapacity. It is much more powerful than a Last Will and Testament or regular power of attorney and should be considered a vital document in any estate plan. The DPOA is relevant at any age, but especially necessary for older people who are more susceptible to mental deterioration. Problems begin when a person is incapable or unable to make financial decisions for themselves. A person may be unable to make these decisions because of the onset of dementia, being in a coma, or suffering from a head injury. Mortgages, car payments, medical bills and other obligations still need to be addressed during these times. Moreover, an individual may need to make important decisions about public assistance like Medicare, Medicaid, or Veterans benefits. It is not always the case that a close relative can legally deal with these issues and most financial institutions will not even speak with a relative without a properly executed power of attorney. It can cost thousands of dollars in legal fees and waste tremendous amounts of time in the courts to be granted the authority that a power of attorney provides.
How to create a Durable Power of Attorney?
The process to create a DPOA is straightforward but should be done by an attorney in the state where the person resides. DPOAs are authorized by state statute and each state varies as to what is permissible to include in the document. States may also differ in how DPOAs are executed. Generally, the scope of an agent’s power is defined within the DPOA document itself. Powers cannot be assumed; they must be explicitly granted within the DPOA. Essentially, the person making the DPOA appoints an agent to act on their behalf for financial affairs. Typically, the agent is authorized to access the person’s accounts, pay bills, apply for benefits, or take any number of other actions, up to and including accessing online accounts, even social media. This access assumes the person has created and maintained a password vault of some form – that’s a topic for another day!
It is critically important that any DPOA be, well, durable. A durable power of attorney survives the person’s incapacity. There is usually language that must be included such as, “This power of attorney shall not be affected by subsequent disability or incapacity of the principal.” A regular power of attorney will not be effective when the person is incapacitated absent language in the document to the contrary.
When is it effective?
There are two basic options for when the document is effective. First, the document could be effective immediately upon signing, even though the client is still lucid and capable (which, of course, they must be to effectively execute the DPOA). People are often surprised by and uncomfortable with this option. The key to alleviating this concern is to only give this power to someone that is, without a doubt, trustworthy. Also, in most states, the named agent does not need to execute the document; indeed, the person is under no obligation to even inform the named agent that they have been designated as such. The document itself can be kept in safekeeping until it is needed.
The alternative to an immediately effective power of attorney is a springing power of attorney. A springing power is effective—springs to life, as it were—upon a future event identified in the document, such as the person’s incapacity. Under a traditional springing power, the agent has no authority to act unless and until the person becomes incapacitated. However, a springing power can be significantly more difficult for an agent to administer because financial institutions may demand a current medical report, signed by a doctor as evidence of incapacity before they allow the agent to act.
As with any appointment of an agent, there are potential pitfalls to consider in executing a DPOA. First and foremost, DPOAs provide broad authority that could be abused by the named agent. The potential for abuse grows with the scope of authority. Can the agent give a gift to themselves under the document? Can they change beneficiary designations on financial accounts?
With those caveats in mind, a DPOA should be developed with an attorney and included in most, if not all, estate plans to ensure that the agent can easily act if the person becomes incapacitated. If you have questions, reach out to us for a consultation.
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