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Power of Attorney

Power of Attorney
Cantonment ➔ Pensacola ➔ Navarre


Power of Attorney ➔ Get It When You Don't Need It ➔ Because You'll Need It When You Can't Get It

Very few people call my office asking for a Power of Attorney (or Health Surrogate Designation). Most call primarily for help preparing a Will or a Trust to give away their "stuff" after they die. When I do receive calls about these documents, it is often from a spouse, child, or other family member asking for assistance preparing these documents for someone who can no longer take care of their affairs. They've run into a wall at a bank or hospital where they have been told they need a Power of Attorney or Health Surrogate Designation to withdraw money or make a medical decision for an incapacitated loved one. As is often the case with these documents, by the time they need it, it is often too late for the principal to grant these powers to another person. AN INCAPACITATED PERSON CANNOT GRANT A POWER OF ATTORNEY.

While a Will or a Trust are incredible resources for protection and distribution of your assets, what about "you"? Who will take care of your financial affairs if you are unable? Who will make health decisions for you if you are incapacitated? These questions are often far more important than who gets your stuff at death and if you don't have the answer (and proper documents) the laws of the State of Florida will provide answers for you in the form of an expensive and restrictive guardianship. For that reason, I recommend that EVERYONE have these documents.

Having the proper documents for your family and friends to assist you can save time and money. Those without are often subject to guardianships which can cost thousands of dollars and months of lost time before decisions can be made, bank accounts accessed, and property sold.

A Power of Attorney is a document that allows you to name a person or persons to make business, financial, property, and/or personal decisions for you. The documents lays out the powers granted along with any restrictions on those powers. The person that you name does not have powers greater than you (i.e. they do not have power "over" you) and furthermore, these powers can be revoked at any time (as long as you are then competent to revoke them).

I like to use the analogy that a power of attorney is like making a person a copy of your house key so that they can help while you're out of town - it doesn't mean they own your house or can take your stuff, they are only authorized to do approved tasks. If they abuse the power that you have granted, you can change the locks or, in extreme cases, call the police to report a crime.

Similarly, a Designation of Health Surrogate allows someone to make medical decisions for you. This allows you to pick the person that you believe would best follow your desires for medical treatment in a scenario where you are unable to make those decisions due to mental or physical incapacity. The designation is often combined with a Living Will (a poor name as it is not a Will and lays out how you wish to die) which conveys your desires for your end of life treatment. This allows you to tell your medical providers if and when you wish for medical treatment to be withdrawn if it will only prolong the process of dying.

Some worry that these documents are the equivalent of throwing in the towel, but on the contrary, they are quite empowering. Instead of a judge deciding who should assist or care for you, you get to decide who you trust to take on the task. Remember that your most valuable asset is YOU. Don't leave the decision to someone else.

What is a Power of Attorney?

A Power of Attorney is a legal instrument that is used to delegate legal authority to another. The person who signs a Power of Attorney is called the Principal. The Power of Attorney gives legal authority to another person (called an Agent or Attorney-in-Fact) to make property, financial and other legal decisions for the Principal. The word attorney here means anyone authorized to act on another's behalf. It's not restricted to lawyers.

A Principal can give an Agent broad legal authority, or very limited authority. The Power of Attorney is frequently used to help in the event of a principal's illness or disability, or in legal transactions where the principal cannot be present to sign necessary legal documents.

How do I select an Agent for a Power of Attorney?

You should choose a trusted family member, a proven friend, or a professional with an outstanding reputation for honesty. Remember, signing a Power of Attorney that grants broad authority to an Agent is very much like signing a blank check.

Certainly, you should never give a Power of Attorney to someone you do not trust fully. And do not allow anyone to force you into signing a Power of Attorney.

Can I appoint more than one Agent in a Power of Attorney?

Yes. You may appoint multiple Agents. If you appoint two or more Agents, you must decide whether they must act together in making decisions involving your affairs, or whether each can act separately.

Consider the advantages and disadvantages to both forms of appointment. Requiring your Agents to act jointly can safeguard the soundness of their decisions. On the other hand, requiring agreement can delay action, or one may be unavailable to sign. If your Agents are allowed to act separately, one will usually be available to act for you, but there may be confusion and disagreements if the Agents do not communicate with one another, or if one of them believes that the other is not acting in your best interests. It is generally a good idea to appoint a substitute Agent.

Powers of Attorney are only as good as the Agents who are appointed. Appointing a trustworthy person as an Agent is critical. Without a trustworthy Agent, a Power of Attorney becomes a dangerous legal instrument, and a threat to the Principal's best interests.

What are an Agent's obligations to a Principal?

The Agent is obligated to act in the best interests of the Principal. An Agent is a fiduciary, with strict standards of honesty and loyalty to the Principal. An Agent must safeguard the Principal's property, and keep it separate from the Agent's personal property. Money should be kept in a separate bank account for the benefit of the Principal, and Agents must also keep accurate financial records of their activities, and provide complete and periodic accountings for all money and property coming into their possession.

Instruct your Agent to provide accurate records of all transactions completed for you, and to give you periodic accountings. You can also direct your Agent to provide an accounting to a third party - a member of your family or trusted friend--in the event you are unable to review the accounting yourself.

Once I sign a Power of Attorney, may I continue to make legal and financial decisions for myself?

Yes. The Agent named in a Power of Attorney is only your representative. As long as you are capable to make decisions, you can instruct your Agent to do only those things that you want done.

What is an Advance Directive?

An Advance Directive is actually several types of documents: Power of Attorney for Health Care, Living Will, and Financial Power of Attorney. These are documents that legally tell in writing either who you would wish to make your health care decisions for you in the event that you are unable to do so or provide guidance to your physicians regarding how you would wish your health care be decided in the event that you have a terminal condition or are in a persistent vegetative state.

An Advance Directive expresses your personal wishes and is based upon your beliefs and values. When you make an Advance Directive, you will consider issues about life-sustaining procedures such as ventilation, feeding tubes or other procedures you wish or may not wish in the event you are in a terminal condition or persistent vegetative state. An Advance Directive does not include decision-making for mental health issues or treatment.

What is the difference between a Living Will and Power of Attorney for Health Care?

A Living Will goes into effect only when your death is very near or when you are in a persistent vegetative state and have no cognitive abilities to make medical decisions. It deals only with the use or non-use of life sustaining measures.

A Power of Attorney for Health Care also goes into effect when you can no longer make healthcare decisions (incapacitated) but you do not have to be close to death or in a vegetative state. The Power of Attorney for Health Care allows another person to speak for you and make healthcare decisions for you that are not limited to life-sustaining measures. The type of decisions this person can make depends upon the extent of authority you give when you complete the form.

When do my Advance Directives take effect in a hospital?

The Designation of Health Care Surrogate takes effect when your physician has deemed that you are unable to make your own decisions relating to healthcare.

Living Will would be enacted only when your attending physician and a consulting physician determine that you are:

  • Unable to make your own medical decisions and (unlikely to regain this ability). AND
  • Either in a terminal, persistent vegetative state, an end stage condition, or in any other condition that you specified in your Living Will.

Where should I keep my Advance Directive and Power of Attorney?

You should keep your Advance Directive and Power of Attorney in a readily accessible place where family/friends can locate it. You should make sure your family members, physician and your lawyer, if you have one, know you have these documents and know where they are located. Bring a copy of Advance Directive when you are hospitalized. The document will remain on file at the Hospital.

What if I change my mind?

You can cancel or replace a Advance Directive or Power of Attorney at any time. You can either execute a written statement that is signed and dated by you which states your intent to revoke the previous document in the presence of two witnesses or create a new Advance Directive or Power of Attorney expressing your changed intent. Upon executing any changes, make sure that those with an old copy of these documents (doctor, bank, family members, etc.) are notified of the change.