Durable Powers of Attorney

A durable power of attorney gives another person (the “attorney-in-fact”) the authority to act on behalf of the person signing the document (the “principal”). A power of attorney is considered to be “durable” because it is effective even when the person signing the document later becomes incapacitated. Typically, a durable power of attorney is used only when a person lacks the capacity to make decisions and take actions needed to facilitate financial transactions such as making a mortgage payment, paying a student loan, or transferring funds between accounts.

Durable powers of attorney are especially important for parents of young children, because they allow a parent to nominate a guardian for a child if the child’s parents become incapacitated. Durable powers of attorney can also appoint a person to make short-term or emergency health care and childcare decisions on behalf of the principal or principal’s child if the child does not have a parent with capacity to make these decisions.
In Florida, Durable powers of attorney become effective immediately when the document is signed.

A durable power of attorney that is effective immediately upon signature runs the risk of the having a rogue attorney-in-fact make unauthorized transactions on the principal’s behalf while the principal still has capacity to act for themselves.  It happens!

Because an attorney-in-fact is usually granted broad access to the principal’s financial resources, the decision of who to appoint in that role should be made with care. Thoughtful consideration is necessary to select an attorney-in-fact who will make sound financial decisions and act with integrity when granted unfettered access to your financial resources. However, by thinking through these hard questions now, you can rest easier knowing you decided what is right for you.