What is a Durable Power of Attorney?
A durable power of attorney (DPA) for health care is another kind of advance directive. A DPA states whom you have chosen to make health care decisions for you. It becomes active any time you are unconscious or unable to make medical decisions. A DPA is generally more useful than a living will. But a DPA may not be a good choice if you don’t have another person you trust to make these decisions for you.
This is a really useful document if you become incapacitated or disabled because it can allow someone you choose to handle your financial affairs, such as cashing checks made out to you, handling your retirement accounts, filing your tax returns, accessing your safe deposit box, selling a house to generate funds for your family’s support, planning to avoid death taxes, etc. Without this document, the person caring for you would have to spend quite a bit of his/her time (and your money) setting up what is called a ‘Conservatorship’ and getting a judge’s approval before acting on your behalf.
A durable power of attorney allows you to carry on your financial affairs in the event that you become disabled. Unless you have a properly drafted power of attorney, it may be necessary to apply to a court to have a guardian or conservator appointed to make decisions for you when you are disabled. This guardianship process is time-consuming, expensive, often costing thousands of dollars and emotionally draining. There are generally two types of durable powers of attorney: a “present” durable power of attorney in which the power is immediately transferred to your attorney in fact; and a “springing” or future durable power of attorney that only comes into effect upon your subsequent disability as determined by your doctor. When you appoint another individual to make financial decisions on your behalf, that individual is called an “attorney in fact”. Anyone can be designated, most commonly your spouse or domestic partner, a trusted family member, or friend. Appointing a power of attorney
A durable power of Attorney allows for a person to designate an individual, known as the attorney-in-fact to make decisions on their behalf. By executing a Durable Power of Attorney, the Attorney-in-fact is acting as if he were literally that person. The Attorney-in-fact has a fiduciary duty to this individual, and therefore subjects himself to liability if acting improperly.
Limited and general Powers of Attorney terminate if and when the principal becomes incapacitated. Because many people would like Powers of Attorney to continue during their incapacity Florida law provides for a (special) power known as a “Durable Power of Attorney.” A Durable Power of Attorney remains effective even if a person becomes incapacitated; however, there are certain exceptions specified in Florida law when a Durable Power of Attorney may not be used for an incapacitated principal. A Durable Power of Attorney must contain special wording that provides the power survives the incapacity of the principal.
