Jacksonville Probate and Estate Planning Lawyers

Powers of Attorney

Powers of Attorney, Living Wills and Designations of Health Care Surrogate are documents known as “advance directives.”

A power of attorney is a legal document delegating authority from one person to another. In the document, the maker of the Power of Attorney (the “principal”) grants the right to act on the maker’s behalf as their Agent. What authority is granted depends on the specific language of the Power of Attorney. A person giving a Power of Attorney may make it very broad or may limit it to certain specific acts.

A Power of Attorney may be used to give another the right to sell a car, home or other property. A Power of Attorney might be used to allow another to access bank accounts, sign a contract, make health care decisions, handle financial transactions or sign legal documents for the principal. A Power of Attorney may give others the right to do almost any legal act that the maker of the Power of Attorney could do, including the ability to create trusts and make gifts.

There are three common types of powers of attorney: (1) Limited; (2) General; and (3) Durable. The first two types expire if you become mentally disabled - the time when you need help the most. The third, a durable power of attorney, continues to operate even if you become unable to manage your own personal and financial affairs, with some exceptions. As long as you are mentally competent, you can revoke a durable power of attorney whenever you like.

Any person appointed as an Agent under a Power of Attorney must meet certain standards of care when performing his or her duties. An Agent is looked upon as a “fiduciary” under the law. A fiduciary relationship is one of trust. If the Agent violates this trust, the law may punish the Agent both civilly (by ordering the payment of restitution and punishment money) and criminally (probation or jail).

A properly executed Durable Power of Attorney may avoid the need for a guardianship. If the alleged incapacitated person executed a valid Durable Power of Attorney prior to his or her incapacity, it may not be necessary for the court to appoint a guardian. As long as the Agent has all necessary powers, it may not be necessary to file guardianship proceedings.

One of the most common misconceptions that people have is that the power of attorney is still effective after the death of the Principal. This is not true. The authority of any Agent under a Power of Attorney automatically ends when one of the following things happens: (1) the Principal dies; (2) the Principal revokes the Power of Attorney; (3) A court determines that the Principal is totally or partially incapacitated and does not specifically provide that the Power of Attorney is to remain in force; (4) the purpose of the Power of Attorney is completed, or (5) the term of the Power of Attorney expires. In any of these circumstances, the Power of Attorney is terminated. If, after having knowledge of any of these events, a person continues to act as Agent, he or she is acting without authority.

While a durable power of attorney can be a helpful tool, it is also an extremely powerful document and you should always consult with an attorney so that you fully understand how the document works and what hazards may be involved. Among the important considerations you will have to make is who you will choose to act as your Agent You don’t have to choose a lawyer to be your Agent, but it is important to select someone you trust implicitly. The relative or friend you choose will be acting on your behalf regarding your financial or health issues. You need to choose someone who won’t abuse the powers you grant to them and will look out for your best interests.

A durable power of attorney is one of the most powerful documents that you may ever sign. For that reason, you should always seek the assistance of a skilled attorney. My firm has been helping people with wills, advance directives and estate planning for over 49 years and I will work with you to make sure that your rights are protected.