Over the past couple of months, I have written about what is a Durable Power of Attorney (DPOA), why we need DPOA’s, and who you should appoint as your agent. This month, I would like to focus on: How Does Incapacity Affect a DPOA?
The most important reason to have a DPOA is so that, if something happens and you become incapacitated, you have appointed someone (i.e., your “agent”) who can step into your shoes and help you with your financial obligations. Your agent can have the authority to pay your bills, access your bank accounts, deal with your investments, handle your real estate, etc.
So long as the DPOA is “durable” it will still be good if you become incapacitated. The language you want to see in the DPOA that makes it “durable” is something similar to, “This durable power of attorney is not terminated by subsequent incapacity of the principal except as provided in chapter 709, Florida Statutes.” If this language is not in your DPOA, then you may have a power of attorney that is only good for a certain period of time or in certain circumstances.
Prior to the changes in the Florida DPOA statute on October 1, 2011, you could have a “springing” DPOA, meaning it would not take effect until you were determined to be incapacitated. This means that two doctors would have to sign affidavits stating that you no longer have the capacity to make legal decisions. However, after the changes to the new statute on October 1, 2011, springing DPOA’s are no longer valid. The good news is that old DPOA’s that are “springing” are grandfathered in, and still valid.
So, if you become incapacitated, how does that affect your DPOA? Sometimes, it is necessary to file for guardianship over a person, especially in cases where the person is being taken advantage of by another individual. The court always wants to pursue the least restrictive alternative and, if the alleged incapacitated person signed a valid DPOA before he or she became incapacitated, the court may allow the agent to have authority to act, rather than appointing a guardian over the person’s property. However, when an action is filed to have someone determine incapacitated, any DPOA that they might have is automatically suspended until the court decides whether the agent may act under the DPOA.
If you have questions regarding your Durable Power of Attorney or would like more information, we are happy to help. Laurie Ohall is a Florida Board Certified Elder Law Attorney based in Brandon, Florida. Contact Ms. Ohall today if you need estate planning, elder law, probate or guardianship assistance.