In our everyday practice, Patrick and I have helped clients with Florida durable power attorney documents that were incorrectly drafted. Most often, the problem with the Florida DPOA is that it does not contain the required designation of superpowers under the Florida Statutes, as amended in 2011. Usually, these clients had received their power of attorney forms from a nonattorney legal form business in Florida, online from a legal form website, or sometimes from a Florida attorney. When they most need their durable power of attorney, they unfortunately realize that it will not work. As a result, they are scrambling to get a new one in a time of need.
Under section 709.2016, Florida Statutes, a durable power of attorney executed after October 1, 2011 is valid if it complies with the requirements of section 709.2105, Florida Statutes. A durable power of attorney executed before October 1, 2011 is valid if it complies with the applicable statutes at the time of its execution.
The most common error that we see with durable power of attorney documents executed after October 1, 2011 is when the principal (the person who executed the power of attorney) does not sign or initial next to the required powers as set out in section 709.2202, Florida Statutes. Under section 709.2202, Florida Statutes, EACH of the following powers must be initialed for the powers to become effective:
- The power to create an inter vivos trust (a trust for the principal that is created while the principal is still alive);
- The power to make changes to a trust created by the principal including the power to “amend, modify, revoke, or terminate the trust, but only if the trust instrument explicitly provides for amendment, modification, revocation, or termination by the settlor’s agent;”
- The power to make a gift;
- The power to create or change a beneficiary designation;
- The power to waive the principal’s “right to be a beneficiary of a joint and survivor annuity, including a survivor under a retirement plan;” or
- The power to disclaim property and powers of appointment.
One of the key items in the list above is the power to create an inter-vivos trust. If the principal is going to a nursing home and needs to qualify for Medicaid, a qualified income trust is usually required in order to get the principal’s income under the Medicaid income limit. If the principal does not have the required power initialed on his or her durable power of attorney, and the principal does not have capacity to execute legal documents, then the agent named in the invalid power of attorney cannot take the steps needed to qualify the principal for Medicaid. If the qualified income trust cannot be executed or if the principal cannot execute a new power of attorney, the principal will not be able to qualify for Medicaid.
An additional issue that we see with durable power of attorney documents is leaving out certain powers that should be included. One of the key powers is the power to conduct banking transactions. Under section 709.2208, Florida Statutes, the specific wording providing that the agent has “authority to conduct banking transactions as provided in section 709.2208(1), Florida Statutes” can be included in the durable power of attorney. This provision allows for the agent to pay for items the principal requires, such as medical treatment, or other items the principal needs if the principal is incapacitated. Although you may have an argument against a bank if they refuse to honor a Florida durable power of attorney, a well drafted document can avoid any of the hassle. Inclusion of the specific language set out in the statute will make it easier to deal with your bank through the durable power of attorney.
If you do not have a Florida durable power of attorney or think that your durable power of attorney may be defective, you should talk with a Florida attorney who has knowledge about the latest developments in the law. At Richert Quarles, P.A., we provide free consultations for people in order to see if your estate planning documents, including durable power of attorney documents, accomplish your wishes in the event that you pass away or are incapacitated. In our free consultation, one of our estate planning and probate attorneys will confidentially review your estate planning documents and provide you with feedback on any changes that may need to be made or recommended. If you decide to hire our firm to draft new estate planning documents, we will provide custom documents and supervise the execution of all of the documents. Contact us today to schedule your free consultation.
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