Estate planning lawyers often use the term “Durable Power of Attorney” and although many people know what a Power of Attorney (“POA”) is, they often do not understand what it means to say that the POA is “Durable.”
Under Florida law, if a POA is Durable, it means that its powers continue even if the person who signed it becomes incompetent or incapacitated. So, for example, if Grandma signs a Durable POA while she is mentally competent and then later develops severe dementia, the Durable POA can still be implemented even though Grandma no longer is “with it.”
In order to be “Durable,” a POA in Florida must contain language stating essentially the following:
This Durable Power of Attorney is not terminated by my subsequent incapacity except as provided in Chapter 709, Florida Statutes.
The current enforceability of a Durable POA is contrasted with the archaic former laws of some states, including Florida, which said that once a person became incompetent or incapacitated, their POA was no longer enforceable. In many ways, this defeated much of the purpose for having a POA.