Will Your Power of Attorney Work When You Need It?

As a specialist in the field of Elder Law, I have reviewed countless estate planning documents that did not fulfill the maker’s wishes. In my experience, however, the document that causes the most damage in times of crisis is the poorly-written financial Power of Attorney.

A financial Power of Attorney allows you to appoint a trusted individual (your agent, or “attorney-in-fact”) to assist with your financial and legal affairs prior to your death. It is the most fundamental of legal documents. So fundamental that individuals regularly obtain them from online legal services, from their local notary public, and from attorneys who practice little, if any, in the field of elder law. Later, when the maker is in the midst of one of life’s greatest crises – entry into long-term care – the appointed agent learns that the Power of Attorney doesn’t give them the powers they need.

In Florida, your appointed agent only has the powers explicitly granted by the Power of Attorney. And one of the most critical powers, the power to perform Medicaid planning, must not only be expressly granted in the documents but also initialed by the maker of the Power of Attorney. Florida Law has required that this special power be specifically expressed and initialed for more than ten years. Despite this longstanding legal requirement, I regularly review Powers of Attorney executed by now mentally incapacitated seniors that either do not contain this critical power, or that include the power without the maker’s initials.

This is a serious problem. The person in crisis lacks the mental capacity to sign a new Power of Attorney, and I can’t help their appointed agent protect and preserve their assets and obtain eligibility for Medicaid benefits without it. In the most egregious situations, the only alternative is a court-ordered guardianship proceeding – an expensive, invasive, time-consuming process being carried out during an already stressful and emotional time.

Note my earlier statement that a Power of Attorney is only valid during the lifetime of the maker. Once the maker dies, the Power of Attorney automatically terminates, by operation of law. Should the agent use the Power of Attorney after the maker’s death, he or she will be subject to civil liability, and potentially money damages, for misusing the document.

A well-written Durable Power of Attorney is essential to your planning for times of crisis. At Morgan & Getzan, we recognize the crucial nature of this document and stay up-to-date on the law governing it. With our help, you can feel confident that your carefully-crafted documents will work when incapacity strikes.

Teresa Byrd Morgan, J.D., B.C.S.
Florida Bar Board Certified in Elder Law


Contact Us Today

If you do not have a well-written or properly executed Power of Attorney, or if you are not sure if your current Power of Attorney document includes the provisions for your agent to perform Medicaid planning on your behalf, it is important that you take steps to address it in your estate plan.  The experienced Florida estate planning and elder law attorneys at Morgan & Getzan can provide you with professional guidance and advice. Contact us today at (386) 755-1977 to schedule a consultation.