Durable Power of Attorney / Living Wills

Durable Power of Attorney

A Durable Power of Attorney allows you to appoint a family member, friend or attorney as your agent or “attorney in fact” to act on your behalf as and when you specify in the event you become incapacitated or are otherwise unable to act. This document can be very comforting and helpful when family members must handle financial transactions or sign legal documents for a loved one. It also alleviates the need for the time and expense associated with a guaradianship proceeding. How much power is granted in a Durable Power of Attorney and what action your attorney in fact can undertake on your behalf depends upon the type and the specific language therein. A limited Power of Attorney defines a specific action or task that you are authorizing your attorney in fact to undertake on your behalf such as to attend and sign documents at a real estate closing on a day that you were out of town. A general Power of Attorney is comprehensive and gives your attorney in fact essentially all the rights and powers that you have yourself. Under Florida law, a Durable Power of Attorney remains legally valid regardless of the capacity or incapacity of the principal (the one signing over power to another, the “attorney-in-fact”). To avoid misuse of power by the attorney-in-fact, the Florida legislature has enacted specific limitations on what the attorney-in-fact can do when there is an incapacitated principal and placed certain requirements before a Power of Attorney will be recognized as durable (Florida Statute §709.08): The durable power of attorney must be in writing:

  • must be executed with the same formalities required for the conveyance of real property by Florida law; and
  • must contain the words: “This durable power of attorney is not affected by subsequent incapacity of the principal except as provided in s. 709.08, Florida Statutes” or similar words that show the principal’s intent that the authority conferred is exercisable notwithstanding the principal’s subsequent incapacity.

Additionally, if the durable power of attorney is conditioned upon the principal’s lack of capacity to manage property, then the durable power of attorney is exercisable only upon the delivery of certain statutorily specified affidavits to the third party (Florida Statute §709.08).

Living Wills / Healthcare Surrogates

A Living Will directs your physician as to whether or not to cease life-sustaining procedures which would serve only to prolong your death if you are both mentally and physically incapacitated and are either terminally ill and/or you are in a persistent vegetative state. It gives guidelines for your physician to follow, as well as clarifies your intent as to life-sustaining procedures. A Health Care Surrogate or Health Care Power of Attorney designates a Health Care Representative if you are incapable of making health care decisions or providing informed consent for medical treatment. It must also account for HIPAA (Health Insurance Portability and Accountability Act) of 1996 to be effective.

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