A Power of Attorney is a document that creates a relationship between a person granting the power (the “Principal”) and a person receiving the authority to act (the “Agent”). One of the most important aspects of a Power of Attorney document is that it can be revoked by the principal. Many people confuse a power of attorney with a guardianship. They think that when they have a power of attorney, they can act in any way they want without regard to the principal’s wishes; however, an act by the agent which is contrary to the wishes of the principal is a revocation of the power of attorney. A guardianship on the other hand is court appointed and involves some, or all, of the person’s rights removed and given to the guardian. A guardianship power allows the guardian to act contrary to the wishes of the ward.
Another area of confusion is the cost involved in establishing a guardianship versus a power of attorney. A power of attorney can be properly drafted by an Elder Law Attorney for a few hundred dollars, whereas a guardianship costs several thousand dollars. In many cases a power of attorney will be all that is needed, while in other cases a guardianship is necessary. Typically, a consultation with an Elder Law Attorney will help determine whether or not a power of attorney will be sufficient.
There are several types of powers of attorney. A General Power of Attorney allows the agent to act in areas enumerated under the Florida Power of Attorney statute, except those powers which are designated as “Super Powers,” which require specific initialing. A Limited Power of Attorney allows the agent to act in ways specifically enumerated in the power of attorney.
The most widely used power of attorney for Elder Law and Estate Planning is the Durable Power of Attorney. This type of power of attorney is referred to as durable because unlike non-durable powers of attorney, it will remain in effect even if the principal becomes incapacitated. This is especially important when planning for incapacity, since it is expected that the Durable Power of Attorney will be used in cases where the principal will develop Alzheimer, Dementia, Parkinson’s disease, or other medical condition which will leave the principal incapacitated.
It’s important to note that a power of attorney, whether durable or not, terminates upon the death of the principal, and is suspended when a petition for incapacity is filed in the probate court usually seeking guardianship. Since the court looks to the “least restrictive alternative,” even if the person is found incapacitated, a guardianship may be avoided by having a Durable Power of Attorney, as well as a Health Care Surrogate and Living Will in place.
Please call our office at 954-832-0885 to discuss how The Law Offices of Odelia Goldberg can help you with your legal issues. Home, hospital appointments and telephone appointments are available.