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What makes a Durable Power of Attorney “Durable?”

by | May 17, 2022 | Durable Power of Attorney, Elder Law, Estate Planning |

In our estate planning practice, we regularly have clients sign a document titled “Durable Power of Attorney.” So, what is a Durable Power of Attorney? First and foremost, as a Power of Attorney, it is a legal instrument which a person, the principal, can sign appointing and authorizing another person to act as agent on their behalf. In essence, the agent is appointed and given authority to exercise various powers on behalf of the principal.

Typical introductory language of a Durable Power of Attorney might read like this:

I, [name] desiring to create a durable power of attorney pursuant to Chapter 709, Fla. Stat., hereby appoint [name of appointed person], who is of sound mind and is 18 years of age or older, as my true and lawful attorney-in-fact, (hereinafter referred to as ‘agent’) for me and in my name, to do any and all acts which I could do if I were personally present and acting for myself.

Many times, the Durable Power of Attorney also will also include a list of specific powers given to the agent. These powers might include matters such as authority to conduct banking transactions, authority to sell, exchange, option, transfer, lease and convey my real and personal property, and authority to negotiate, prepare, enter into and execute contracts on the principal’s behalf.

So, what is it that makes the Durable Power of Attorney “Durable?” Section 709.2102(4), Florida Statutes provides that “Durable” means, with respect to a Power of Attorney, that the powers granted are not terminated by the principal’s incapacity. In simple terms, when a Power of Attorney is Durable, the agent may continue acting on behalf of the principal despite the principal’s inability to take those actions necessary to obtain, administer, and dispose of real and personal property. Historically under the law, a Power of Attorney was not durable and therefore, if the principal became incapacitated, the agent could no longer act for the principal. This effectively defeated one of the main purposes of the Power of Attorney, i.e. to assist the principal when assistance was needed.

Like many states, Florida has a statutory section governing Powers of Attorney. The Florida Power of Attorney Act can be found in Chapter 709, Florida Statutes. In Florida, in order for a Power of Attorney to be “Durable”, it needs to include the following language (or similar words to this effect):

This Durable Power of Attorney is not terminated by subsequent incapacity of the principal except as provided in Chapter 709, Florida Statutes.

Not having this language is fatal to the durability of the Power of Attorney in Florida.

A real-life example of the importance of a Durable Power of Attorney can be seen in the following example. Nancy is an 89-year old widow who lives alone. She does not drive and due to some of her infirmities, she rarely goes out and she has difficulties tending to her own personal and financial affairs. As Nancy has aged, she needs increasingly more assistance in the home. However, she is unable to make arrangements with a local homecare service to provide her care. The service requires various applications and paperwork to be filled out and signed on a regular basis. Nancy is not able to keep up with the paperwork. Fortunately, Nancy has a son, Phillip, who lives nearby and who is her agent under Nancy’s Durable Power of Attorney. Using this instrument, Phillip is able to fill out all of the paperwork and to sign it on Nancy’s behalf. He will continue to have the power granted even if Nancy becomes totally incapacitated. Without the Durable Power of Attorney, Nancy would be in a tough situation.

Any well-planned estate plan in Florida should include a Durable Power of Attorney. When you meet with an attorney to discuss your “Will”, make sure you also discuss having a Durable Power of Attorney.

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