Florida Durable Power of Attorney as an Advanced Directive

Written by Collett P Small. Esquire on . Posted in Power of Attorney

A Durable Power of Attorney (DPOA) is a powerful legal document by which one person (the "principal") appoints another person ("agent" or "attorney in fact"), to act on their behalf. Authority is conferred on the agent to perform certain acts or functions on behalf of the principal, such as executing contracts, applying for benefits, buying or selling real estate and handling bank accounts. The extent of the powers granted by the DPOA depends on the language of the document itself. An agent does not need to be an attorney as some believe the name suggest. However, the agent has to be a competent adult whom the principal trusts and should be someone who is familiar with the principal's wishes.

A well written and properly executed DPOA may serve as an advanced directive and avoid the need for guardianship proceedings should the principal later become incapacitated. Compared to a guardianship a DPOA provides the element of control as it allows the principal control over who can make decisions on their behalf, as well as, over the powers an agent is allowed to exercise. In guardianship proceedings these decisions are usually made by a Judge. No judicial proceedings are necessary to establish a DPOA.

Another benefit of a DPOA is that it allows the principal to handle their affairs relatively inexpensively compared to a guardianship after they becomes incapacitated. A DPOA helps to avoid the stigma of being labeled as incompetent, if the principal later becomes incapacitated. In guardianship proceedings the incapacitated person is labeled as such and in legal terms is referred to as a Ward. Setting up a DPOA takes the stress off your family and creates peace of mind that there is someone set up to handled your affairs in an emergency or when the need arises.

There are also downsides to having a DPOA. A DPOA can be abused so it is critical to choose an agent you absolutely trust. While there are mandatory statutory and fiduciary responsibilities of an agent, there is no ongoing supervision of the agent. A DPOA must meet certain criteria to be valid and if it is not properly executed or does not meet all the required statutory formalities, it may fail as an advanced directive document.

On October 11, 2011 a new DPOA Statute became effective in Florida. However, DPOA's that were valid prior to this date are still valid. While it is not necessary to hire an attorney to draft a DPOA, it is highly recommended to be sure that the document is valid and that it properly represent the authority that the principal wishes it to convey.

An important feature of the DPOA is that it can be revoked at any time by the principal as long they are competent. A DPOA is immediately invalid upon the death of the principal.