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Do You Know What a Durable Power of Attorney is?

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A durable power of attorney is a written document by which a person designates another to transact his or her business.

Did you know the person intending to create the document is referred to as the principal? The person granted the authority to transact business for the principal is referred to as the attorney-in-fact or the agent. The attorney-in-fact has the full authority to perform, without prior court approval, every action authorized and specifically enumerated in the durable power of attorney. This authorization may even include the authority to sell or mortgage the principal’s real property, including his or her homestead.

The attorney-in-fact named in a durable power of attorney may continue to transact business  for the principal until the principal dies, revokes the power, or is determined by a court to be incapacitated. Incapacity is defined under this statute as the “inability of an individual to take those actions necessary to obtain, administer, and dispose of real and personal property, tangible property, business property, benefits, and income.” A power of attorney is durable if it contains these words, “this durable power of attorney is not terminated by subsequent incapacity of the principal except as provided in chapter 709, Florida Statutes.” It is not required that these exact words be used in the durable power of attorney.

A new Durable Power of Attorney statute became effective on October 1, 2011. Nevertheless, the provisions of the new statute stat that a valid durable power of attorney signed before October 1, 2011, when the person signing the document was an adult in the presence of two subscribing witnesses and a notary public, will remain valid and enforceable as long as the provisions are not invalid under the new law. However, these signing requirements do not apply to military powers of attorneys in which is valid if executed in accordance with requirements for a military power of attorney pursuant to 10 United States Code section 1044(b). Do not wait to learn from us about durable power of attorneys. Ready to schedule a meeting? Just contact us to let us know.