Helpful Articles
How Good Is Your Power of Attorney & Do You Know?
Family
Elder Law is pleased to offer the legal column entitled “From the Attorney’s
Desk,” authored by Jason A. Penrod, B.C.S., CELA. Jason is board certified as an Elder Law
Expert by the Florida Bar and the National Elder Law Foundation. He is also the founder of Family Elder Law
with offices in Lake Wales, Lakeland, and Sebring, Florida. The column addresses legal issues of
particular interest to our readers. In
addition, the columnist answers individual questions from the readership on a
wide range of topics. To submit your
questions or suggestions for topics, please email them to info@familyelderlaw.com.
“FROM
THE ATTORNEY’S DESK”
How Good is Your Power of Attorney & Do You Know?
By
Jason A. Penrod, B.C.S., CELA
I firmly believe that it is best to admit when one doesn’t know if
a legal document is effective rather than to just assume its
effectiveness. This article focuses on
the effectiveness of one document in particular—a Durable Power of Attorney.
Some people believe that all power of attorney documents are the
same or have a “one size fits all” mentality.
This misconception that all powers of attorney are uniform can result in
a costly experience when it comes time to exercise the power of that
document. In some cases for example, and
especially when the principal that gave the power is incapacitated, it can lead
to a loved one being unable to access a bank account. It can also lead to the need for a
guardianship which can cost thousands of dollars in legal fees.
Fortunately, I have clients that have come to me ahead of time to
have their powers of attorney evaluated.
Most clients want to know that their power of attorney document is
sufficient to meet all their potential needs were they unable to act for
themselves. Since needs change over our
lifetime, it makes sense that your power of attorney document may need to be
revised at some point.
Some circumstances that may provoke consideration on whether your
power of attorney document should be modified are: 1) moving from another state
to Florida or being a “snowbird”; 2) having health issues; 3) losing a loved
one that was your named or backup power of attorney; 4) family dynamics
evolving; and 5) changes in the law.
Please be aware that the Florida statutes governing power of
attorneys changed effective October 1, 2011.
Some of the changes dealt with the powers themselves such as mandating
that the grantor of the powers initial certain provisions that grant “extraordinary”
or “super” powers. These powers can be
particularly important if one needs to protect assets to pay for long-term
care. For instance, if the principal has
Dementia or Alzheimer’s and resides in a nursing home, the Agent may need
certain powers to be able to access and protect funds to afford the nursing
home care.
It may be a good idea to review your document and see if you have
you executed a document that has your initials next to certain provisions. The more that time passes since this law
change, the more unfamiliar people will be with the type and look of those
documents that were executed prior to the law change.
When people ask me whether they should have an attorney look at
their power of attorney document to see if it meets their needs, I often say:
“If you thought enough to ask, then it is probably worth taking the time to
have your document reviewed.” If you
desire to discuss the issues explored in this article or would like to execute
a durable power of attorney tailored to your needs, please contact a
knowledgeable estate planning or elder law attorney to assist you.
