Table of contents:
Introduction
A Durable Power of Attorney (DPOA) is a legal document that allows you to appoint someone you trust to make decisions on your behalf if you become incapacitated or unable to make decisions for yourself. In Florida, a DPOA is governed by Chapter 709 of the Florida Statutes.
Having a DPOA provides several benefits. It ensures that your wishes will be respected if you are unable to communicate them yourself. It also relieves your family and loved ones from the burden of making difficult decisions on your behalf.
Purpose
The primary purpose of a DPOA is to provide for the management of your financial and healthcare affairs in the event that you become incapacitated. You can grant your agent authority to make decisions about your property, investments, and finances. You can also grant them authority to make decisions about your healthcare, including medical treatment, end-of-life care, and organ donation.
Benefits
There are several benefits to having a DPOA. These include:
- Peace of mind knowing that your wishes will be respected if you become incapacitated.
- Relief for your family and loved ones from the burden of making difficult decisions on your behalf.
- Protection of your assets and property if you become incapacitated.
- Ensuring that your healthcare wishes are followed.
Legal Requirements
In Florida, creating a valid DPOA requires adherence to specific legal requirements. Understanding these requirements is crucial to ensure the document’s validity and effectiveness.
Who Can Be Appointed as an Agent
The person you appoint as your agent must meet certain criteria:
– They must be 18 years of age or older.
– They cannot be under a legal disability or incapacity.
– They should be someone you trust and who is capable of handling your financial and healthcare matters.
Powers That Can Be Granted to the Agent
The powers you grant to your agent should be carefully considered. The DPOA can grant the agent broad powers or limit them to specific tasks. Common powers include:
– Managing your finances, such as paying bills and investing.
– Making healthcare decisions on your behalf.
– Handling legal matters, such as signing contracts or representing you in court.
Creating a DPOA
Creating a durable power of attorney in Florida is a straightforward process. Here are the steps involved:
Step 1: Obtain a Form
The first step is to obtain a durable power of attorney form. You can download a form from the Florida Bar website or from a local attorney’s office.
Step 2: Complete the Form
Once you have the form, you need to complete it. This includes providing your personal information, the name of your agent, and the powers you want to grant your agent.
Step 3: Have the Form Notarized
Once you have completed the form, you need to have it notarized. This means having a notary public witness your signature and verify your identity.
Step 4: Keep the Original Document Safe
Once the form is notarized, you should keep the original document in a safe place. You may want to make copies of the document and give them to your agent and other trusted individuals.
Powers and Duties of the Agent
The agent appointed under a durable power of attorney (DPOA) has specific powers and duties towards the principal. These are Artikeld in the DPOA document and are guided by the legal framework governing DPOAs in Florida.
The agent’s primary duty is to act in the best interests of the principal, with the utmost care, diligence, and loyalty. This fiduciary duty requires the agent to prioritize the principal’s well-being and make decisions that align with the principal’s wishes and values.
Scope of the Agent’s Authority
The scope of the agent’s authority is determined by the terms of the DPOA document. The principal can grant the agent broad or limited powers, depending on their specific needs and preferences. Generally, the agent is authorized to make decisions regarding the principal’s:
- Health care
- Financial affairs
- Legal matters
- Personal care
- Other specific areas as designated in the DPOA
The agent’s authority extends to making decisions on behalf of the principal, even if the principal is unable to communicate their wishes. However, the agent must always act within the scope of their authority and in accordance with the principal’s best interests.
Examples of Decisions the Agent Can Make
The types of decisions the agent can make on behalf of the principal vary depending on the scope of authority granted in the DPOA. Some common examples include:
- Making medical decisions, such as consenting to treatments or procedures
- Managing the principal’s finances, including paying bills and investing assets
- Representing the principal in legal matters, such as signing contracts or filing lawsuits
- Making decisions regarding the principal’s personal care, such as choosing a nursing home or arranging for transportation
- Carrying out specific tasks as Artikeld in the DPOA, such as selling property or making charitable donations
It’s important to note that the agent’s powers are not absolute. The principal can impose limitations or restrictions on the agent’s authority, and the agent must always act within the bounds of the law.
Revocation and Termination
A durable power of attorney can be revoked or terminated in several ways:
- By the principal: The principal can revoke the DPOA at any time, as long as they are mentally competent. This can be done by writing a revocation document or by destroying the original DPOA.
- By operation of law: A DPOA is automatically terminated if the principal dies, becomes legally incapacitated, or if the agent named in the DPOA dies or becomes incapacitated.
- By a court order: A court may terminate a DPOA if it finds that the principal is not competent to manage their own affairs or if the agent is not acting in the best interests of the principal.
Legal Consequences of Revoking a DPOA
Revoking a DPOA has several legal consequences:
- The agent named in the DPOA will no longer have any authority to act on behalf of the principal.
- Any actions taken by the agent after the DPOA has been revoked will be void.
- The principal will be responsible for their own affairs.
What to Do If the Agent Becomes Incapacitated
If the agent named in the DPOA becomes incapacitated, the principal should take the following steps:
- Contact the agent’s successor agent, if one is named in the DPOA.
- If there is no successor agent, the principal should consider appointing a new agent.
- The principal should revoke the old DPOA and create a new one.
Special Considerations
Creating a DPOA for an individual with disabilities requires special considerations to ensure their rights and needs are adequately addressed.
It’s crucial to involve the individual in the process as much as possible, respecting their preferences and ensuring they understand the implications of granting power to an agent.
Healthcare Surrogate
In addition to a DPOA, it’s highly recommended to appoint a healthcare surrogate. A healthcare surrogate is responsible for making medical decisions on behalf of the individual if they become incapacitated and cannot make decisions themselves.
The healthcare surrogate should be someone the individual trusts and who understands their values and wishes regarding medical care.
Resources for Individuals with Disabilities
Several resources are available to assist individuals with disabilities in creating a DPOA:
- Disability Rights Florida: https://disabilityrightsflorida.org/
- Florida Developmental Disabilities Council: https://www.florida-ddc.org/
- Florida Department of Elder Affairs: https://elderaffairs.state.fl.us/
