Springing Powers of Attorney – still viable in Florida?
Very often, a client wants me to prepare a durable power of attorney for them that cannot be used until they are determined to be incapacitated. This is because persons who serve as agents under a power of attorney have a lot of control over the principal’s assets and can use the power of attorney to sell real estate, transfer money from bank accounts, and change beneficiary designations. Depending on how the power of attorney is drafted, the powers the agent has can be effective regardless of whether someone is incapacitated. It’s no wonder that a person would not want someone else to have that kind of power unless the person is incapacitated. This is where springing powers of attorney are useful because they do not take affect until someone is deemed incapacitated by their doctor.
However, in October, 2011, the laws were changed concerning springing powers of attorney and they were no longer allowed after October 1, 2001. Powers of attorney which were signed prior to October 1, 2011 (and which were “springing”) were grandfathered in.
So what do you do not want your agent to have control immediately, regardless of whether you are incapacitated? The only options are to either a) do not give a copy of the durable power of attorney to the agent (because copies are as good as having the original) but let the person know that if something happens to you, the documents have been prepared and where they can find them, or b) have your attorney hold the originals and copies and tell your agent that if something happens, they should go to the attorney with proof that you are incapacitated (you should also provide instructions to your attorney that the DPOA is not to be used unless you are incapacitated and they are provided proof of same).