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Powers of Attorney

What is a power of attorney?

The longer we live, the more likely it is that our mind and/or body will suffer from deterioration or a traumatic event that causes us to lose the capacity to make our own financial decisions. A power of attorney allows you (the "principal"), to designate another person (the "agent"), to act on your behalf should you become mentally or physically incapacitated to act for yourself. 

Problems which result in incapacity or other diminished ability to function can befall anyone at any age, and are not just problems for the elderly. Powers of attorney, advance health care directives (living wills), and designations of health care surrogates are some of the legal documents Robert W. Tribuiani, Esq., an attorney at law, can draft and execute in order to help you avoid the costly and often emotionally draining effects of court involvement. 

What are the different kinds of Powers of Attorney?

The legal instrument that creates the power of attorney establishes the agent's power to step into the shoes of the principal and defines the scope and duration of those powers. There are four basic kinds of powers of attorney. 

  • limited powers of attorney
  • general powers of attorney
  • durable powers of attorney
  • springing powers of attorney

The limited power of attorney allows the agent to act on behalf of the principal with respect to certain assets and/or specified instructions. The general power of attorney allows the agent to act on behalf of the principal in a wide range of matters with a broad scope of power. The durable power of attorney is a power of attorney that survives the principal's disability or incapacity of the principal, which is precisely when it is most needed. If a power of attorney is not drafted to be durable, it will become ineffective upon the principal's incapacity. Please consult an estate planning attorney for legal advice. 

Another kind of power of attorney is a "springing" power of attorney. Springing powers of attorney executed on or after October 1, 2011 will not be enforceable under Florida law. Those lawfully executed prior to October 1, 2011 will continue to be enforceable under Florida law. This kind of power of attorney does not empower the agent until the principal's lack of capacity to manage his or her property is evidenced by the written affidavits of two doctors. The springing power of attorney, therefore, survives the principal's incapacity, but is not exercisable until the agent produces affidavits of incapacity from two doctors. 

Should I download a power of attorney from the Internet?

Do not use a power of attorney that you download from the internet. You cannot rely on the legal information that these websites provide you. They are prohibited from providing you any legal advice regarding your power of attorney, and much of the information provided is misleading, at best. Furthermore, no matter how famous the spokespersons for these websites are, they do not represent you. They are not your attorney. No matter how many forms you buy and how many customer service representatives with whom you speak, you are not protected by a client-attorney relationship. In many instances, there is no way for you to know the full extent of the legal ramifications of these forms, without speaking to an attorney.