In Florida, there are laws that give someone the power to make decisions for another person if they become unable to do so. These laws have changed over time to allow more people to act as a decision maker. An article questions how much power these decision makers actually have and if they need to get permission from a court to make certain decisions. However, the article argues that, if the legal papers are done correctly, the decision maker can handle a lot of important things without needing court approval. In 1995, Florida law changed to allow more people and organizations to act as someone’s power of attorney (DPOA). This law also gave guidance on what powers an attorney-in-fact can have and the limits of those powers. Since then, there have been some updates to the law, including allowing for a springing DPOA, but most of the 1995 provisions are still the same. According to the law in Florida, a Durable Power of Attorney (DPOA) has limitations on what the appointed person, called the attorney-in-fact, can do. For example, they cannot make changes to documents that take effect after the person’s death, unless the DPOA specifically allows it. They also cannot transfer assets to an existing trust unless the DPOA allows it.
These limitations mean that the attorney-in-fact may not have as much power as the person creating the DPOA intended. The purpose of a DPOA is to help someone who might become unable to handle their own affairs, without needing court intervention. However, the limitations in the law could interfere with this purpose. The law seems to want the attorney-in-fact to have less power than a court-appointed guardian.
In simpler terms, the law in Florida has rules about what the person appointed to make decisions for someone else can and cannot do. These rules might not always match up with what the person who made the appointment wanted. A Power of Attorney (POA) allows someone to make decisions on behalf of another person. If the POA specifically says so, the person with the POA can handle things like joint property, retirement accounts, and other financial matters without having to get permission from a court. This means they can make changes to things like a person’s retirement account or take money out if the POA allows it. A power of attorney can give someone the authority to borrow against a personâs life insurance policy. It can also allow someone to take assets out of a trust to help the person qualify for Medicaid. A Power of Attorney (DPOA) gives someone the authority to make decisions for another person. This can include the authority to give away the person’s property as a gift. However, the person with this authority must always act in the best interest of the person they are helping. The law is being revised to make sure that DPOAs clearly state what powers the person has, including the power to make gifts. The principal can give someone the power to do things like make changes to their property, accounts, and beneficiaries, and also borrow money against their life insurance policy. The Florida Legislature is considering changes to the law to give even more power to the person appointed by the principal. Until those changes are made, people should continue to follow existing laws and court decisions when creating these documents. 4) Take money out of the principalâs trust to help them qualify for Medicaid.
5) Give away the principalâs stuff to other people, including the person who has power of attorney. The law in Florida says that if someone gives authority to someone else through a Durable Power of Attorney, that person can make decisions on their behalf without needing to go to court. This is meant to be a less restrictive alternative to guardianship. The law has been updated to clarify this, and it’s considered to be in good shape. Katherine L. Smith is a lawyer in Sarasota. She is part of two committees for The Florida Bar.
Source: https://www.floridabar.org/the-florida-bar-journal/durable-powers-of-attorney-a-less-restrictive-alternative/
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