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Currents
February 2016
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act on your behalf for virtually all legal and financial matters. The Durable Power of Attorney is most often utilized
if you become incapacitated; however, I have many clients
who choose to allow someone trustworthy to act on their
behalf just to make life less complicated. The Durable
Power of Attorney can be used for such diverse jobs as
paying bills, signing contracts, buying and selling real
estate, making investments, collecting monies owed and
most other matters of a legal or financial nature. It does
not cover any medical decisions, for which Florida Law
requires a Designation of Health Care Surrogate. It also
does not cover “pulling the plug,” for which a Written
Declaration, otherwise known as a Living Will, is required.
If you have never done a Durable Power of Attorney, it
is extremely important to contact a lawyer to prepare the
document as soon as possible. However, if you have a
Durable Power of Attorney and it is over five years old, it is
strongly advisable to prepare a new one.
A comprehensive law regarding the Durable Power of
Attorney became effective on October 1, 2011. The law
does provide that any Durable Power of Attorney executed under Florida Law before October 1, 2011 will
remain valid. However, in the last year, many financial
institutions are refusing to honor old Durable Power of
Attorneys, particularly more than five years old. There can
also be substantial delays involved if your Agent attempts
to use an old Durable Power of Attorney, since they are
being reviewed by the legal departments of the institutions prior to being allowed. The older your Durable
Power of Attorney is, the more likely it will undergo
scrutiny and may be rejected.
The new law requires that you specifically initial many
different types of powers in order for your Agent to be
able to perform that duty. The banks, brokers, life insurance companies and other institutions are much more
comfortable with this detailed Durable Power of Attorney,
since it is clear what you want your Agent to do.
Under the new law, you can choose to name two people to act as Co-Agents. You then designate whether you
allow them to act independently (only one signature necessary) or require that they act together (two signatures
necessary). Your designated Agents will also need to sign
an acceptance agreeing to act.
The new format of the Durable Power of Attorney is
much more extensive and complicated
(ours is 26 pages); therefore, if you did a Power of
Attorney years ago, expect to pay more for the new one.
This article summarizes a few of the basic aspects of
the Durable Power of Attorney. It is recommended that
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