Do You Have a Valid Durable Power of Attorney?


The most important legal document that you can have is a Durable Power of Attorney (DPOA) because it can accomplish so much if your loved ones have to act on your behalf due to your absence from home or you are incapacitated.  If you are incapacitated and you do not have a DPOA your loved one would have to go to court and initiate a guardianship proceeding.

If you only have a regular Power of Attorney and you become incapacitated, then your loved ones would not be able to act on your behalf.  They would then again have to go to court and initiate a guardianship proceeding to obtain the necessary powers to act on your behalf.  Even the simplest of guardianships can cost thousands of dollars to get into and even more if you later need to get out of the guardianship

If the DPOA that you have is more than several years old, then it is probably insufficient.  The laws have changed several times over the last several years and the required wording in a power of attorney has changed also.  Without a recent date and required wording, your loved ones may not be able to assist you in the event of your absence from home or your incapacity.  Banks, financial institutions and title companies are reluctant to work with outdated DPOA and are equally reluctant or will not work with DPOA that have insufficient or outdated language.

Several examples of improper DPOA that recently came into my office were: (1) the attorney that drew the DPOA forgot or otherwise did not mention an alternate agent to act if the primary agent was unable to act.  This almost caused an individual to be thrown out of a nursing home. (2) Improper wording in a DPOA or the passage of time caused a client problems selling their deceased parent’s home when they had years before created an Enhanced Life Estate Deed leaving the property to themselves.  That issue has not been resolved at this point in time, but it may be necessary to establish a probate of the estate of the last spouse to die.  With proper wording at the time the durable power of attorney was drawn would have avoided this situation all together.  (3) A family had a Florida attorney draw a DPOA several years back and the attorney did not properly handle the execution of the document as required by law.  This nearly caused the family to help their mother qualify for Medicaid benefits.

These are the main problems that can come up with the wrong DPOA for you being created.  In my opinion, only an Elder Law Attorney should be consulted about a DPOA.  Why, you may ask?  The education, training and experience of an attorney are critical in preparing a DPOA.  It has been my experience that only an elder law attorney gets the proper training to prepare the modern DPOA.

Why can’t I get a DPOA off of the internet or at my local office supply store?  The answer is simple.  The documents generally do not follow Florida law, but general law instead, and these forms may not meet the current requirements of Florida law or they may be totally outdated by changes in the law…  Also, none of these DPOAs take into consideration your personal situation and your personal needs.  The old proverb of a penny saved is a penny earned comes to mind.

One last caution.  You have to be extremely careful in picking your agent to act on your behalf, if necessary.  I have seen people chose the wrong individual and that individual later cleans out their bank accounts and they could even steal their home or other property as they “act on your behalf”.