One of the basic documents needed for a complete estate plan is the Durable Power of Attorney, which is commonly referred to as a DPOA. The Durable Power of Attorney is a must for all of our clients.
The Power of Attorney enables the client to appoint a person or persons who are granted authority to manage the client’s assets and otherwise stand in his/her shoes with regard to property and personal business issues. The durable power of attorney also allows the client to maintain control over decisions regarding medical treatment and asset management during incapacity by naming an agent who will carry out the client’s wishes regarding health care and property matters in the event of incapacity. Additionally, and probably one of the most important reasons for having a durable power of attorney, is to avoid the need for a guardianship in the event of the client’s incapacity. The DPOA insures that the Client’s preferred person serves as their representative, rather than having a judge appoint a different person who might not have any relationship with the client.
A Florida Durable Power of Attorney can achieve other objectives including limitations on the powers and discretion of the representative and granting special powers to implement asset preservation options in the event of long term care or the sale of real property. I am always asked what is the difference between a Durable Power of Attorney and of a traditional Power of Attorney. A Durable Power of Attorney survives incapacity. A traditional power of attorney is no longer valid upon incapacity of the Client.
Lastly, the legal requirements for a Florida Durable Power of Attorney to be valid is that it must be in writing, freely and knowingly executed, and executed in the presence of a two witnesses and notarized.
