An Overview of a Durable Power of Attorney

Many trusts attorneys and estate planning consultants are proponents of equipping clients with the proper paperwork for securing their finances and assets in the unfortunate case that they become incapacitated. In this specific case, there is a specialized document called a durable power of attorney. It is a powerful and commonly used legal document that gives an individual certain rights to act on behalf of the maker of the document. In order to better understand this document, this article will delve into some background information for a durable power of attorney in Miami, how it can be used, and some of the implications of using one.

What is a durable power of attorney? As previously stated, it is one of the most vital legal documents that exists - it gives a person the right to legally act on behalf of another person. Other legal documents that involve the power of attorney are null the moment that the maker becomes unable to act. It is out of this necessity that a durable power of attorney is used to grant legal authority to an individual in the case that the maker of the document becomes incapacitated. Even though the more general power of attorney document gives a person the right to sell property, sign contracts and handle financial transactions it does not go as far as if the maker of the power of attorney is incapacitated. For instance, if the maker is unable to act due to Alzheimer's, a power of attorney can help in ways that a general power of attorney cannot.

How does a durable power of attorney work? One of the requirements for this document to be active is that the maker is able to sign it with full mental capacity. This is an especially important detail when it comes to these situations because it ensures that it cannot be drafted while an individual is not fully aware. One nuance to this is that even if the maker is not aware that they signed the moment after signing, as long as they were complicit in that initial moment then the document is active. Some of these conditions hinge on whether the signer knows what the power of attorney will do, who they have given the power of attorney to, as well as what properties of theirs will be affected by the power of attorney. This is done to protect the maker’s assets, however, in some instances, this is the legality that causes the most issues, so it is crucial that a power of attorney be written and signed well in advance before it becomes too late. The individual who gets durable power must be of at least 18 years of age, however, there are not too many other specifications than that - it is wise to choose this person carefully, as a power of attorney can easily become an opportunity for somebody to take your belongings. With this being said, let us look at some of the powers and responsibilities of this individual.

In this specific case, the individual can be referred to as the attorney-in-fact as they are acting on legal behalf of the maker of the document. The attorney-in-fact is limited in acting only for what the power of attorney states. This is where it helps if all of the conditions are clearly defined and agreed upon, otherwise, the attorney-in-fact may be unclear of how to act. Aside from this, the attorney-in-fact is also bound to a couple other standard restrictions. For instance, the attorney-in-fact cannot sign off on anything that states that the maker has any knowledge of specific details in events like a car accident. The attorney-in-fact is barred from publicly voting for the maker in addition to being restricted from making a will for the maker during their incapacitation. The attorney-in-fact is not able to be transferred guardianship or take over any responsibilities in that regard. Clearly, there is a decorum for an attorney-in-fact to treat their position with respect and trust. If the attorney-in-fact does not adhere to certain wishes they can be tried criminally or fined for their actions. However, the attorney-in-fact cannot be held liable for anything that is explicitly stated in a power of attorney. Another feature of the document to be mentioned here is that the moment power of attorney is signed by the maker, it is enacted. The only case where this is not true is if it’s explicitly stated in the power of attorney that the attorney-in-fact must wait until a certain date before the document is in effect.

The last element to understand in a power of attorney is the involvement of the third party. In most cases, if the document is signed clearly and both parties seem in agreement then the third party should feel no liability in signing off on it legally. However, in the case that a third party refuses to accept a durable power of attorney, they become liable to any complications they may cause in verifying the documents. Oftentimes the third party refuses to accept it because they cannot prove that the maker was of sound mind when they signed the document or that the documents are even valid at all. If this situation does arise, then the remedy would be to sign an affidavit that binds you to your written statements. However, in most cases these affidavits do not need to be lengthy or time-consuming, they are formalities in protecting all parties’ liability in the case.

The process of obtaining the proper paperwork for protecting your assets in the case of an unfortunate event is seemingly complex. Hopefully taking a moment to understand the power of attorney as a legal document and some of the requirements and guidelines for successfully settling one will assist you in obtaining your legal documents. Planning ahead for yourself and your estate is no small task. Seeking the counsel of dedicated and caring individuals to help administer and delegate this process can ensure the protection of any valuable assets as you prepare for life’s unexpected events.