If you become unable to take care of your needs, do you have a power of attorney in place so that someone else can?
What is a power of attorney?
It is a legal document that allows the person or persons of your choice to act on your behalf in the event you are sick or injured. This person will be called an agent or attorney-in-fact (though that doesn’t mean they are, in fact, an attorney!).
You can choose a family member, friend, or even a neighbor, as long as the person is at least 18 years old, and trustworthy. A “durable” power of attorney will remain in effect even after you become mentally incapacitated, where a “non-durable” one will not. So in most cases, you’ll want the durable variety because that’s when a power of attorney is most helpful for your family – when you are no longer capable of financial decision making.
The durable power of attorney allows your agent to make financial transactions on your behalf. He or she can perform all kinds of tasks, from simply sorting through your mail to more difficult duties like filing your income tax return. You can authorize the agent to deal with your retirement accounts and life insurance – even make gifts or update your estate plan – although these “superpowers” require special authorization from you.
When does the power of attorney go into effect?
Usually – always in Florida and some other states – the power of attorney is effective immediately. That means your agent has full authority to act as soon as you sign it. This give some people some pause so if you have concerns, you may want to leave the document with your attorney or in a safe place until it’s needed.
You may have heard the term “springing” power of attorney. The term “springing” means that this particular power of attorney “springs” into effect only when you become incapacitated. This idea seems sound in theory, but in practice it turns out to be difficult to work with.
The point at which a person is officially incapacitated is rarely clear, and as a practical matter it relies on finding doctors willing to sign affidavits and financial institutions willing to accept them. These challenges and delays can render the document worthless in an emergency. Due to these and other difficulties, springing powers of attorney are no longer valid in Florida as of October, 2011.
What is a “medical” power of attorney?
There is sometimes confusion between a power of attorney and a so called medical power of attorney. A medical power of attorney is not technically a power of attorney. It is more commonly referred to as an advance medical directive or health care surrogate designation. This document will give your agent permission to handle your medical needs, such as consent or refusal of treatment or filling out your hospital admittance forms.
This document is sometimes confused with a living will which is another animal altogether. For more on living wills and health care surrogate designations, click here.
What should you do?
In conclusion, if something happens to you and you don’t have a power of attorney in place, your family may need to go to court to have a judge appoint a conservator or a guardian. It’s not a pleasant thing to think about, but having a legal plan for difficult times will save the people you love a lot of heartache.
A power of attorney is a must-have for any adult. It is easy to create and can be revoked at any time. If you don’t have one, what are you waiting for? Create one today and put your mind at ease.
About Oakstone Law, PL
Oakstone Law PL was founded by Bob Kleinknecht. A member of the Family Trust Subcommittee, the Estate Tax & Trust Planning (ETTP) Committee and the Real Property, Probate & Trust Law (RPPTL) Section of the Florida Bar, Kleinknecht has 15 years’ experience.
Prior to founding Oakstone law, he spent more than eight years serving as a personal, in-house estate, tax and charitable planning attorney for a Forbes 400 family in New York and Florida. Before that he was an estate planning and estate settlement attorney with prominent firms in Boston and Washington, D.C. after beginning his career with a boutique firm in Naples, Florida.
Licensed in Florida and Massachusetts, Kleinknecht has developed a practice model that eliminates billing by the hour and offers a streamlined, customized client process supported by technology, security and a personal approach.
For more information on Oakstone Law, click here. To get in touch with us, click here to send us an email, or call 239-206-3454. Our office is located at 5137 Castello Drive, Suite 2 in Naples, Florida 34103.