Generally, a complete basic estate plan in Florida consists of five documents; a Pour Over Will, a Revocable Trust, a Living Will, a Designation of Health Care Surrogate, and a Durable Power of Attorney. Although the brunt of the estate plan will be found in the Revocable Trust, and the Pour Over Will ensures no assets are left out of the Trust provisions, those documents only come into play when the client has passed away. As baby-boomers enter into retirement, special attention must be paid to the possibility of a client’s incapacity during life, and thought must be given as to who will make decisions on behalf of the client if such incapacity occurs.

With a higher likelihood that a client will experience some stage of incapacity at some point in his or her life, it is very important to incorporate a Durable Power of Appointment into Estate Plans. The Florida Power of Attorney Act was revised in 2011 (and can be found in F.S. 709.2101-709.2402) so modify and streamline Durable Powers of Attorney in Florida, and to help those third-parties (such as banks) that rely on Durable Powers of Attorney.

The important aspect of implementing a power of attorney sort of a catch-22: at the time the client signs it, it is unlikely that the client has a current need for it; if a client becomes incapacitated and needs an Attorney-in-Fact to act on the client’s behalf under a Power of Attorney, it is too late to have the client sign a Power of Attorney! It is important to be proactive and implement a Power of Attorney before the need to use it arises.

Although the statute clearly states that older Powers of Attorney (signed before October 1, 2011) are still valid and may be used if they comported with the laws at the time (under F.S. 709.2106(2)), it is highly recommended that you update your Power of Attorney if it was executed before October 1, 2011.

As always, if you have any questions regarding Powers of Attorney in Florida, or an estate plan in general, please feel free to contact me: bhorner@rlloydlaw.com, (772) 234-5500.