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Florida Power of Attorney: What it can do, and what it can’t do.

A Power of Attorney is, generally speaking, the most important document in a comprehensive estate plan.  A Power of Attorney is a legal document that delegates authority from one person to another. The person who makes a Power of Attorney (called the “principal”) grants their agent specified rights to act on the principal’s behalf. The scope of a Power of Attorney can vary widely, as authority is limited to specified acts or authority is broadly bestowed upon the agent to engage in a wide range of action.  Each person’s need for a power of attorney should be assessed under their particular circumstances.

If the Power of Attorney is “durable,” then the principal’s authority to act survives incapacity.  In other words, if the principal is injured or unconscious in a way that prevents them from being able to take action individually, the principal’s authority will remain active even under these conditions.  To make a power of attorney durable, a principal simply needs to make that intention known in the wording of the Power of Attorney.

A durable Power of Attorney is crucial for aging individuals who may need medical treatment or simply unable to physically transact business for themselves.  Without a durable Power of Attorney, and where the principal is incapable of managing their person or property, the only other option is to file a petition for Florida guardianship over the person and/or that person’s property.  The time, cost and stress of a court will drastically exceed the cost of a power of attorney.

Dementia and other conditions of the mind can create problems those who are acting as an agent, and who are attempting to protect the principal’s assets and financial interests.  It is important to remember that a power of attorney, durable or otherwise, does not remove the principal’s right to make decisions for themselves.  Therefore, where a person with Alzheimer’s Disease or like condition takes action to manage their funds or property, the power of attorney does not work as a bar to that action.  Obviously, this can be problematic for individuals who are susceptible to undue influence or who simply decide to engage in transactions that are a direct result of the illness.  Under those conditions, a spouse or loved one may be forced to seek a guardianship over the principal since the power of attorney will not be sufficient to protect the principal’s interests.

If you need more information about a Florida Power of Attorney, contact us today at (850) 837-3662.

by

Andrew D. Wheeer is a family law, elder law and appellate attorney, and the founder of The Wheeler Firm, PA. Andrew only take cases in those practice areas in order to focus on those special areas of the law. With offices in Fort Walton Beach and Miramar Beach, Andrew represents clients throughout Okaloosa and Walton counties, and has represented more than 2,000 clients over the course of the past 15 years. Andrew attended the Cumberland School of Law at Samford University, and graduated with a Juris Doctorate of law in 2002. While attending law school, Andrew was active in numerous legal writing opportunities, won awards for legal writing and was selected as a member of the Cumberland Law Review. Andrew was then accepted to the Cumberland Study Abroad Program and attended Durham University in Durham, England. Andrew also worked as a research assistant and intern for Chief Magistrate Judge John Ott in the Federal District Court for the Northern District of Alabama. Over the next 15 years, Andrew represented thousands of clients in divorce, adoption, custody modification proceedings, child support contempt actions, probate litigation, and counseled clients on elder law rights, including long-term care planning and general estate planning. Andrew believes clients desire representation from attorneys who have a thorough understanding of their specific legal issues. Therefore, after beginning his career as a general practitioner, Andrew chose to focus his career on a few specific areas of law - those that affect the family. He continues to concentrate on those areas today. Andrew regularly interacts with the public by speaking to groups of people on family and elder law topics, including long-term care planning and techniques to avoid probate litigation. In 2012, Andrew began teaching seminars on adoption law through the National Business Institute, providing guidance to other attorneys on proper procedures to secure adoptions of children. Andrew is married to Regina Wheeler, with whom he has a son, and the family resides in Santa Rosa Beach, Florida. Andrew serves as President of the Destin Kiwanis Club and is active in the local chambers of commerce.

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