Perhaps the foremost lesson that a Florida estate planning lawyer can impart to a client is the importance of designating trustworthy and dependable individuals to carry out one's wishes. This is just as true for the personal representative (executor) of a will or trustee for a trust as it is for the "attorney-in-fact" who is granted a power of attorney to handle certain decisions in the event of the incapacity or a planned absence of the principal (the person who grants the power).
Powers of attorney provide temporary or permanent authority to a person to act on another's behalf. The most common powers designated under Florida law are:
- Financial power of attorney: Whether temporary or permanent, these powers are versatile and adaptable to many circumstances. One of the most common uses is to designate a real estate agent or other person to close a purchase on the buyer's behalf. Clients with complex business interests and diverse assets may include a durable financial power of attorney in their estate plan to empower an individual to make important decisions in the event of incapacity due to injury, illness or age.
- Health care power of attorney: This power can be used to designate an individual or group to make critical health care decisions in the event of incapacity. The designator can limit the duration of the power to handle issues in the aftermath of major surgery, or create a durable medical power of attorney that is triggered by an unexpected permanent incapacitation.
- Health care directive: Commonly known as a living will, this power of attorney designates a person's preferences regarding the use of heroic measures after an injury or illness, including the use of life support or resuscitation attempts.
Giving such a power legal effect is a relatively straightforward process, but legal counsel can help clients make informed choices. An attorney with experience creating and revoking powers of attorney can help the principal to consider the full range of implications and the precise scope of the power that should be granted.
A power of attorney can be designated to an attorney-in-fact for many specific reasons, but the following powers are prohibited under Florida law:
- Signing affidavits of fact
- Voting on a person's behalf
- Creating or revoking a will or codicil
- Performing the duties of a personal services contract
- Accepting trusteeship, guardianship or conservatorship responsibilities
In addition, attorneys-in-fact are considered to have a fiduciary relationship with principals, and are subject to civil and criminal liability for violating the trust upon which the relationship rests. Under a financial power of attorney, this means that the attorney-in-fact must exercise reasonable care and caution in the management of the principal's assets and keep precise records of all transactions, correspondence and other relevant information.
How Long Does a Power of Attorney Last?
The life cycle of a temporary or limited power of attorney is specified in the legal document that creates the power, but even durable powers of attorney have a finite duration. A durable power automatically terminates if the principal dies, a court determines that the principal is totally or partially incapacitated (and the power in question was not triggered by incapacity), or the principal formally revokes the power of attorney. Revocation entails legal notice to the attorney-in-fact as well as others who may depend on that person's ability to make decisions.
Powers of attorney can also be challenged in probate court based on allegations such as abuse of financial power by the attorney-in-fact or accusations that the principal was subjected to undue influence in creating the power. A person's standing to mount a legal challenge must first be satisfied, and both the person's relationship to the principal and a demonstrated financial interest could be relevant.
Choosing a Dependable Person Who Understands Your Interests
Not everyone is cut out to handle the responsibilities designated by a specific power of attorney. For some clients, a trusted Florida estate planning attorney who has helped with other legal matters may be the obvious choice. A spouse or close friend who understands your concerns and beliefs may be the best person to carry out your health care wishes in the event of incapacity. Decisions of a financial nature are best made by people with the right skills and level-headed judgment.
The key is advanced planning, and the best way to ensure the creation of a power of attorney that meets your needs is to do so well before it is necessary. A consultation with a lawyer who has drafted, defended and challenged such legal provisions can help you understand the pitfalls and craft a document that will serve your needs.