A durable power of attorney is a written document by which a person designates another to transact his or her business. The attorney-in-fact has the full authority to perform, without prior court approval, every action authorized and specifically enumerated in the document. This authorization may even include the authority to sell or mortgage the principal’s real property, including his or her homestead.
An existing durable power of attorney cannot be amended.
This means that if a decision is made to change or alter the Florida Durable Power of Attorney, the existing power of attorney will need to be revoked. The new document, which contains the requested amendment, will need to be signed before two adult witnesses and a notary public.
If the creator is mentally unable to sign a new document, a guardianship of the property may be required. Unfortunately, this can be an expensive and time-consuming process.
Therefore, it is essential that your present durable power of attorney be as complete as possible.
It is essential that the durable power of attorney contains these words or similar words, “this durable power of attorney is not terminated by subsequent incapacity of the principal except as provided in chapter 709, Florida Statutes.” It is also important that a durable power of attorney be signed before two witnesses and have a notary public’s acknowledgment of the principal’s signature in order to convey or mortgage homestead real property.
Further, the Florida statute governing durable powers of attorney states certain authorities must be specifically granted. These powers are referred to as the “superpowers.” A common thread to these superpowers is that their exercise can impact a principal’s existing estate plan.
For example, if specifically authorized, the agent may on the principal’s behalf:
– Create a living trust;
– Make a gift;
– Create or change rights of survivorship;
– Create or change a beneficiary designation;
– Waive the principal’s right to be a beneficiary of a joint and survivor annuity, including a survivor benefit under a retirement plan; or
– Disclaim property.
We know this article may raise more questions than it answers. We encourage you not to wait to learn more about the planning you need. Do not wait to contact our firm to schedule a meeting with attorney Alan Poucher.