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Elder Care Tools: Florida Durable Power of Attorney

durable power of attorney signing pictureAs a follow up to our previous article on making vital elder care decisions on behalf of a loved one, we wanted to provide some additional details on the relatively new Florida Power of Attorney statute.  This is also a reminder for seniors everywhere and their caregivers to review your estate planning and advance care planning documents from time to time to ensure they are current with new laws as well as your life changes.

Florida’s new Power of Attorney statute made significant changes to the previous statutes covering Power of Attorney documents.  This bill went in to effect on October 1, 2011.  Here is a basic overview, which we provide not as legal advice, but to give you a general picture of how significant the changes are and the ways it may affect you as a Florida senior or family member to a loved one residing in Florida. 

As always, we reiterate that you should consult with your attorney about this and other legal matters.  If you do not have an attorney, and need a referral for an elder law or estate planning attorney in Tampa Bay/Clearwater/St. Petersburg, Florida or beyond, we invite you to contact us.  We wanted to review this issue on our blog because we know that a lot of people executed documents prior to these changes and may not have reviewed them since with their attorney.  Particularly for individuals with memory issues or with a worsening illness (who may be able to understand and execute a new document now but not in the near future as the disease progresses), timing is important when it comes to updating these vital documents.

This statute provides that documents which were executed and valid under the previous law will still be valid.  As we mentioned, however, we think it is best to speak to your attorney about updating your document when possible.

Here are some key provisions and changes in Florida’s new Power of Attorney statute:

  • The law eliminated “springing” powers of attorney.  A springing power of attorney is one in which the document goes in to effect upon a condition being met (usually these required doctor’s certification of the person’s incapacity).  Though some people liked the concept of springing powers, others found the administrative requirements of these documents to be problematic for their practical usage.  Older springing powers of attorney would technically still be valid under this new law, but you might run into some of those administrative challenges.
  • The agent (or who you appoint as “attorney-in-fact”) must be: (1) a person who is at least 18 years old; or (2) a financial institution with trust powers, that has a place of business in Florida, and which is authorized to conduct trust business in the state.   You can name a single agent or multiple (co)agents.  If co-agents are named, each may exercise its authority independently from the others.  Under the previous law, all agents were required to act jointly unless you stated otherwise in the document.
  • In order to receive compensation for serving as someone’s power of attorney, the agent must fall in to certain categories.  These are: a spouse or an heir, a financial institution with trust powers that has a place of business in Florida, an attorney or accountant licensed in Florida, or a person who is a resident of Florida and who has never been an agent for more than three people at a time.  This change particularly affected (or could affect) people in the community (often guardians or related healthcare or financial professionals) who served as power of attorney for clients who might not have had or wished to make other arrangements.  This law would not allow for that type of individual to be compensated (if they help or have helped more than three people at a time), unless he or she is an attorney or accountant licensed in Florida.
  • Certain powers must be specifically set out and signed/initialed by the principal (in the past, principals could include a sort of blanket statement allowing the agent to handle almost any business).  A few of the powers that must be specified include: creating a living trust; amending, modifying, or terminating a trust created by the principal; making gifts; creating/changing a beneficiary designation.

*The law also provides that Powers of Attorney executed in other states are valid in Florida if they were executed properly in the applicable state, even if they don’t comply with Florida law (which may be a big help in today’s mobile world and for many Florida snowbirds).  Additionally, it provides that a photocopy or electronic copy should suffice unless specified.

One of the challenging areas for agents acting under a durable power of attorney can be navigating its use and getting various financial and other institutions to accept the document and respond in a timely manner.  This new Florida statute laid some groundwork on that issue with rules regarding acceptance.  When a power of attorney is presented to a third party (such as a bank), the third party has to accept or reject the power of attorney within a reasonable time (four business days) and to provide a written explanation for rejection.  The law also provides for damages, including attorney’s fees and costs, when a third party who refuses to accept the new power of attorney that is in proper form and properly executed.  This does not mean families will not run in to any difficulties, but it provides a clear time frame.

On the other hand, the challenge of working with institutions as the agent for someone might be even greater if you are dealing with an outdated document, executed under the old law.  If you are unable to get an updated document and run in to such problems, you can contact your attorney for help in explaining the document’s validity to the institution and finding a solution (and/or seeking damages if the situation is not handled properly and results in costs to you or the principal). 

Unfortunately, the situations in which families need to use a durable power of attorney are often crises or subject to time constraints (for example: moving a loved one from the hospital in to a nursing home, applying for Medicaid, moving funds to pay for a surgery or an assisted living bill).  When you find yourself faced with hurdles in the process, it can be extremely frustrating.

You might also be interested in getting a copy of our fact sheet, “Getting Answers about a Loved One’s Care” which covers navigating the health care system, privacy policies, and more.  We invite you to give us a call at 727-447-5845 if you have questions, concerns or need advice about navigating elder care.

Our professional patient advocates can be an excellent resource to help your family find the answers you need, seek the highest quality care and create a plan that makes sense for you.  Whether a crisis or an opportunity to plan ahead, we’re here to help!

What Florida Elder Care issues would you like to see us cover?  Leave us a comment and let us know what topics you’d like to know more about or leave us your question!

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