What is a Florida Durable Power of Attorney and How Can it Avoid the Need for Guardianship?

By: Anthony Cetrangelo, Esq.

Understanding the tools available to protect your interests and ensure your wishes are followed is essential. One such tool, the Florida Durable Power of Attorney, is powerful and versatile. By appointing a trusted individual to act on your behalf, you can potentially avoid the complex and often costly process of guardianship should you become incapacitated. This article will explore how it works, its key terms, and its benefits in safeguarding your future.

What is a “Principal” and “Agent” under a Florida Durable Power of Attorney?

A Florida Durable Power of Attorney (“POA”) is a legal document that an estate planning attorney will typically draft for a client (the “principal”) as part of the client’s estate planning documents. A principal is the maker of the POA. The maker of the POA will delegate authority another selected person (the “agent”).

An agent is the party who is given the power to act on behalf of the principal and is sometimes referred to as the “attorney-in-fact.” Do not be confused, the term “attorney-in-fact” does not mean the person is a lawyer (however, a lawyer can serve as an “attorney-in-fact”). The type and amount of authority granted depends on the specific language in the document. The principal may make it broad or may limit it to very specific acts.

Why is it called a “Durable” Power of Attorney?

The answer is actually pretty simple, a durable POA remains effective even if the principal becomes incapacitated. A durable POA must contain specific language that provides that the powers will survive the principal’s incapacitation. You can read more about this under Florida Statute, “709.2104 Durable Power of Attorney.”

Examples of When an Agent Uses a Florida Durable Power of Attorney

An agent may use a durable POA to sell a vehicle or home. It also may allow the agent to have access financial accounts, handle financial transactions or execute legal documents on behalf of the principal. In estate planning, it is not unusual for a durable POA to allow an agent the ability to make gifts or create trusts.

May a Power of Attorney Avoid the Need for Guardianship?

Yes, if the incapacitated person signed a durable POA before the person became it incapacitated, then it may not be necessary for a Florida court to appoint a guardian for the principal. The reason being is because the agent may already have the authority to act for the principal with all of the necessary powers. Sometimes, even if a guardianship has already been filed it may still be avoided by exemplifying to the Florida court that a durable power of attorney exists and that the agent is appropriate to act for the principal.

Bottom Line

Choosing a POA is a vital step in your estate planning process. By selecting a trustworthy, capable, and willing individual, you ensure that your affairs will be managed according to your wishes. Estate planning can be a sensitive and emotional process, but with careful consideration and the proper support, you can secure peace of mind for yourself and your loved ones. Take the time to choose the right agent, and you’ll take a significant step toward a secure future.

Those needing assistance with estate planning may contact me at anthony.cetrangelo@henlaw.com to schedule a consultation.