Estate planning clients sometimes ask whether the person (or "agent) named in their Durable Power of Attorney ("DPOA") has the power or authority to do certain acts regarding the principal's estate or assets. For example, can the agent named use the power of the DPOA to make a gift to another person? Or can the agent use the DPOA to make a change of beneficiary designation-for example on a pay-on-death account or on life insurance?
As an estate planning attorney, I am often asked what needs to be done to terminate a Durable Power of Attorney ("DPOA"). In Florida, there are two ways to accomplish such a termination.
To say that a Power of Attorney ("POA") is "durable" means that the powers given in the instrument stay in effect even if the principal becomes incapacitated and unable to manage his or her own affairs. When a POA in Florida is not durable, the powers cease if the principal becomes incapacitated--thereby requiring that a court-ordered guardianship be established. Most estate planning attorneys would advise to avoid guardianship if possible.
In the estate planning law practice, we often see clients and prospective clients who mean well and intend to get their estate documents in order. Unfortunately, all too often the intentions do not amount to "follow-through" and the price can be significant. This is especially true in the case of a crisis such as incapacity, incompetence or death.
Estate planning lawyers often recommend that clients establish certain key documents. Among those are a Durable Power of Attorney ("POA"). This instrument allows a person to designate an agent to act for them in the event of incapacity.
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."
This ia another in a series of blog entries discussing Florida's recent changes to Chapter 825 which addresses exploitation of an elderly person or disabled adult.