Durable Power of Attorney

February 15, 2008

Another Reason to Have a Florida Durable Power of Attorney

Mississippi’s Supreme court decision reinforces the importance of having a Durable Power of Attorney. A Florida Durable Power of Attorney can be one the most important Florida Estate Planning Documents, a Power of Attorney allows a person you “agent” or “attorney-in-fact” — to make financial decisions for you when you are unable to make these decisions for yourself.

In this case, Mrs. Goodlett admitted her mother, to a nursing home. During the mothers stay at the nursing home, Mrs. Goodlett developed two decubitus ulcers (bed sores), which required surgery. Mrs. Goodlett told the nursing home that she was going to sue the nursing home for negligence and sent them a medical authorization with permission to release Mrs. Goodlett’s medical records. Due to complications from a stroke, Mrs. Goodlett was unable to sign her own name to the medical authorization. The nursing home refused to release the medical records, claiming that because Mrs. Bernadette did not have a Power of Attorney over her mother, only Mrs. Goodlett could authorize the release of the medical records.

Mrs. Bernadette sued the nursing home on behalf of her mother for negligence.

February 6, 2008

Can a Power of Attorney modify a Trust?

by David M. Goldman

Florida changed their statute regarding Power of Attorney several years ago. It seems that many banks and other financial institutions were not honoring existing powers of attorney documents. Florida changed Florida Statute 709 to allow for enforcement and recovery of expenses associated with the improper denial of a Power of Attorney.

Clients often ask if what limits there are on a Durable
Although a client can limit the powers in a Durable Power of Attorney the right to change a Florida Will under Florida Law. Recently we have begun adding specific provisions to allow for the modification of a Florida Revocable Trust with a Durable Power of Attorney. When this happens it is important to also include provisions in the Florida Revocable Trust. to allow for the modification by Durable Power of Attorney. Charles Rubin who writes the Rubin on Tax blog has an article where he discusses this. There was a recent Florida Case where a Florida Revocable Trust was in conflict with a Power of Attorney. The court ruled that the prohibition by the Florida Revocable Trust on modification by Power of Attorney trumped the Power of Attorney.

December 29, 2007

Nursing Home Admission Agreements…Read the Fine Print!

by David M. Goldman

In Jacksonville Florida there are many Nursing homes. Some of them have very long agreements and some are very complex. You should review them carefully and make sure you look out for liberal guidelines regarding when a resident can be evicted, very restrictive visiting hours for family members, and requiring that a family member accept financial responsibility for the resident. These types of requirements may violate federal law; specifically, the Nursing Home Reform Act of 1987. This law is summarized by AARP

Other concerns I have touched on are the ability for someone with a durable power of attorney in Florida to bind the resident or heirs to using binding arbitration in future claims. You may want to have specific language in the durable power of attorney which prohibits the signing or agreement of a mandatory arbitration agreement on your behalf. You have the right to a trial by jury in the United States and may not want your agent acting under a Durable Power of Attorney to Waive your rights.

It is generally a good idea to have an Florida Elder Law Lawyer or Florida Estate Planning Lawyer review a nursing home agreement.

December 26, 2007

Florida Powers of Attorney (Part 6 TERMINATION OF THE POWER OF ATTORNEY)

by David M. Goldman

When does the attorney-in-fact’s authority under a Durable Power of Attorney terminate?

The authority of the attorney-in-fact of a Durable Power of Attorney automatically ends when one of three things happens: (1) the principal dies; (2) the principal revokes the Power of Attorney, or (3) when 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. In any of these three instances, the Durable Power of Attorney is terminated. If, after having knowledge of any of these events, a person continues to act as attorney-in-fact, he or she is acting without authority. The power to make health care decisions, however, is not terminated when a court determines that the principal is totally or partially incapacitated unless the court specifically terminates this power.

What is the procedure for a principal to revoke a Power of Attorney?

December 25, 2007

Florida Powers of Attorney (Part 5 HEALTH CARE AND THE POWER OF ATTORNEY)

by David M. Goldman

What is the relationship between a Declaration of Living Will and Power of Attorney?

A declaration of living will specifies a person’s wishes as to the provision or termination of medical procedures when the person is diagnosed with a terminal condition, has an end-stage condition, or is in a persistent vegetative state. A living will and a health care surrogate designation are termed “health care advance directives” because they are made in advance of incapacity and need. If a person is unable to understand or unable to communicate with a doctor, a living will is a legally enforceable method of making sure the person’s wishes are honored. Whether or not a person has a living will, a person’s attorney-in-fact may make health care decisions if the Durable Power of Attorney specifically gives this right.

What is a Health Care Surrogate Designation and how does it differ from a Power of Attorney?

December 24, 2007

Florida Powers of Attorney (Part 4 RELATIONSHIP OF POWER OF ATTORNEY TO OTHER LEGAL INSTRUMENTS)

by David M. Goldman

RELATIONSHIP OF POWER OF ATTORNEY TO OTHER LEGAL INSTRUMENTS What is the difference between an attorney-in-fact and an executor or personal representative?

An executor, termed a “personal representative” in Florida, is the person who takes care of another’s estate after that person dies. An attorney-in-fact may only take care of the principal’s affairs while the principal is alive. A personal representative may be named in a person’s Will and is appointed by the court to administer the estate.

What is the difference between a “trustee” and an “attorney-in- fact?”

December 23, 2007

Florida Powers of Attorney (Part 3 USING THE POWER OF ATTORNEY)

by David M. Goldman

When is a Durable Power of Attorney effective?
The Durable Power of Attorney is effective as soon as the principal signs it unless the document specifies that it is conditioned on the principal’s lack of capacity to manage property in which case appropriate affidavits are required in accordance with Florida law.

Must the principal deliver the Power of Attorney to the attorney- in-fact right after signing or may the principal wait until such time as the services of the attorney-in-fact are needed?
No. The principal may hold the Power of Attorney document until such time as help is needed and then give it to the attorney-in- fact. Because third parties will not honor the attorney-in-fact’s authority unless the attorney-in-fact provides the Power of Attorney document, the use of the Power of Attorney may effectively be delayed.

Often, the lawyer may fulfill this important role. For example, the principal may leave the Power of Attorney with the lawyer who prepared it, asking the lawyer to deliver it to the attorney-in- fact under certain specific conditions. Since the lawyer may not know if and when the principal is incapacitated, the principal should let the attorney-in-fact know that the lawyer has retained the signed document and will deliver it as directed.

How does the attorney-in-fact initiate decision-making authority under the Power of Attorney?
The attorney-in-fact should review the Power of Attorney document carefully to determine what authority the principal granted. After being certain that the Power of Attorney gives the attorney-in-fact the authority to act, the Power of Attorney (or a copy) should be taken to the third party (the bank or other institution, or person with whom you need to deal). Some third parties may ask the attorney-in-fact to sign a document stating that the attorney-in-fact is acting properly. (The attorney-in- fact may wish to consult with a lawyer prior to signing such a document.) The third party should accept the Power of Attorney and allow the attorney-in-fact to act for the principal. An attorney-in-fact should always make it clear that the attorney-in-fact is signing documents on behalf of the principal.

How should the attorney-in-fact sign when acting as an attorney-in-fact?
The attorney-in-fact will always want to add after his or her signature that the document is being signed “as attorney-in-fact for” the Principal. If the attorney-in-fact only signs his or her own name, he or she may be held personally accountable for whatever was signed. As long as the signature clearly conveys that the document is being signed in a representative capacity and not personally, the attorney-in-fact is protected. Though lengthy, it is, therefore, best to sign as follows:

Howard Rourk, as attorney-in-fact for Ellsworth Toohey.

In this example, Howard Rourk is the attorney-in-fact, and Ellsworth Toohey is the principal.

What if the third party will not accept the Power of Attorney?
If the Power of Attorney was lawfully executed and it has not been revoked, suspended or terminated, third parties may be forced to honor the document. Due to changes in the law, Durable Powers of Attorney executed on or after October 1, 1995, have more clout. An older document may be enforced as well. Under some circumstances, if the third party’s refusal to honor the Durable Power of Attorney causes damage, the third party may be liable for those damages and even attorney’s fees and court costs. Even mere delay may cause damage and this too may be actionable. It is reasonable, however, for the third party to have the time to consult with a lawyer about the Power of Attorney. Banks will often send the Power of Attorney to their legal department for approval. Delay for more than a short period may be unreasonable. Upon refusal or unreasonable delay, consult an attorney.
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December 21, 2007

Florida Powers of Attorney (Part 1 About The Power of Attorney

by David M. Goldman

ABOUT THE POWER OF ATTORNEY What is a Power of Attorney?

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 grants the right to act on the maker’s behalf. 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.

What are some uses of a Power of Attorney?

December 5, 2007

Credit Card Debt and Offers for the Incompetent: Power of Attorney, Guardianship, or Credit Freeze

by David M. Goldman

Kimberly Palmer of U.S. News & World Report wrote an article on the Alpha Consumer Blog where she discussed these issues. Her reader wrote:

My husband, who is retired, has dementia. He responds to credit card offers in the mail and charges things to them, even though he shouldn’t, because he is on limited Social Security disability income. He knows better, but his mind is weak. He always says he won’t use the cards, but he still does. Even if I cut the cards in half, more come in the mail. We are now in $15,000 of debt, and it continues to rise. How can I get him to stop making charges? Will I be responsible for the debt, even if he passes away before I do?

She offers several solutions including 1- using http://www.optoutprescreen.com/

2- using a credit monitoring service.

December 1, 2007

Durable Power of Attorney or Guardianship / Conservatorship

by David M. Goldman

One of the most common questions I get is “What is the difference between a Durable Power of Attorney and a Guardianship?”

Richard Shea an attorney in Connecticut who publishes the Connecticut Estate Planning & Elder Law Blog has a good description of each and the differences in an article titled Power of Attorney v Conservatorship.

He summarizes the differences by stating:

A power of attorney is a relatively low cost and private way to decide which family member or trusted friend will have the legal authority to carry out your wishes if you can no longer speak or act for yourself. If you do not have a power or attorney or if your power of attorney is not drafted properly, and something happens that results in your inability to make decisions, your family/friends may later face court proceedings and court supervised Conservatorship. A court proceeding is not only costly, but the person appointed as your Conservator may not be the person whom you would have chosen yourself. And, as stated above, not having a properly drafted power of attorney could significantly limit financial and/or Medicaid planning that could be done on behalf of the principal.