As a Florida Estate Planning Lawyer, the most common type of Power of Attorney I use is a General Durable Power of Attorney. Powers of Attorney, especially General Durable Powers of Attorney, are often used as part of a thorough estate plan to assist in guardianship avoidance.
What is a Power of Attorney?
A Power of Attorney is where an individual, the Principal, gives another person, the Agent or Attorney-in-Fact, the power over the property of the first.
General vs. Specific
A General Power of Attorney is one that grants as much power as the law allows. It is meant to let the agent basically step into the shoes of the principal and manage all of their assets. A Specific Power of Attorney is used for a limited purpose. This can be used for a single financial account or perhaps to sell a piece of real property. It may also have a limited time in which it can be used.
What does Durable mean?
Typically, a Power of Attorney is only good while the Principal has capacity, the ability to manage their own financial affairs. A Durable Power of Attorney, on the other hand, will survive the incapacity of the Principal. This is how it helps avoid guardianship. The Attorney-in-Fact can continue to manage the finances for the Principal, so the courts don’t have to appoint a Guardian to do so.
What is a Springing Power of Attorney?
Springing Powers of Attorney are ones that only go into effect if the Principal has lost capacity. Unfortunately, Florida does not allow for Springing Powers of Attorney. Instead, Florida Estate Planning Attorneys will typically control use of General Durable Powers of Attorney by controlling the document itself. This must include controlling all copies of the Power of Attorney because, as of 2010, copies of Powers of Attorney may be relied on by financial institutions and others.
Can a Power of Attorney be used for Trust Assets?
While Powers of Attorney are often used in conjunction with Living Revocable Trusts as part of an estate plan, they can not be used to control Trust Assets. For Trust Assets, the Successor Trustee would be the one responsible for managing the Trust Property in the event the Principal, or Settlor, became incapacitated.
What are Power of Attorney Superpowers?
In 2010, the Florida State Legislature authorized additional powers to be included in Powers of Attorney known as Superpowers. These types of powers allow the Agent to make changes to the Principal’s estate plan to take advantage of changes to the laws, changes to the tax code, or to qualify for certain benefits. To be effective, Superpowers must be initialed within the Powers of Attorney and authorized by the documents that they would be used to modify.