A durable power of attorney can be very misleading because it is one of the few estate planning documents that does not necessarily mean what it says. Without a basic understanding of the law, an agent can quickly get into trouble.

First we must define our terms.  In Florida, Chapter 709 of the Florida statutes defines Powers of Attorney and similar Instruments. Under section 709.08(1) a durable power of attorney is a written power of attorney by which a principal designates another as the principal’s attorney in fact.  A durable power of attorney must be in writing, must be executed with the same formalities as a deed, and must contain the words “This durable power of attorney is not affected by the subsequent incapacity of the principal except as provided in s. 709.08 Florida statutes” or similar words that show the principal’s intent that the authority conferred is exercisable notwithstanding the principal’s subsequent incapacity. 
Thus, a durable power of attorney is a written document executed by a principal that confers written authority on another (the “agent”).  Powers of attorney can be general or limited and durable or not durable.  A durable power of attorney is a written document that is not affected if and when the principal becomes incapacitated. 

Most general durable powers of attorney contain language that says something like this:

This instrument is a general power of attorney.  My agent may do any acts for me as often and as freely as I could do them if I were present personally.

I have seen a lot of people (including a fair number of attorneys) get into trouble thinking that this language means exactly what it says - it doesn’t.  For example, without the express authority contained within a durable power attorney, the agent cannot make gifts to him or herself or to anyone else or disclaim homestead rights. Further, an agent cannot revoke any will or codicil for the principal, unless that authority is specifically given in the documents; cannot exercise powers and authority granted to the principal as trustee or as court-appointed fiduciary; cannot create amend modify or revoke any documents or other disposition effective at the principal’s death or transfer assets to an existing trust created by the principal unless expressly authorized by the durable power of attorney.  This is not a complete list of prohibitions.  The point here is that if you are the attorney-in-fact for someone, you need to understand your authority under the document in order to properly exercise your authority under the document.  Contact Linde Law Group for more information.

Matthew A. Linde
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