Is A Durable Power Of Attorney Just A Form That I can Download Online And Sign? Is An Online Durable Power Of Attorney Legal In Florida?
The most common misconception that some people believe is that a durable power of attorney document in Florida can simply be downloaded, printed, and signed. Some people take advantage of that fact and seek to steal from those who sign those documents. The new October 1st, 2011 law seeks to prevent people from using that document to steal from the person signing that power of attorney. However, online form companies have not kept up with the law change, and they most definitely have not kept up with the nuances of different financial institutions that do or don’t accept the durable power of attorney document. I’ve reviewed durable power of attorney forms from many online providers, and the large majority of them do not have language in there that allows your agent to take the action they’re seeking to take.
If the wording of the durable power of attorney does not give a person the authority to take action, then they cannot do it. Or, if it’s not worded properly, then the person cannot do it. For example, in Florida, there is case law that says that the durable power of attorney document must use the word “convey” in connection with the word “real estate” if you want your agent to be able to sell your house. If the wording of the durable power of attorney says, “Sell my house,” like a lot of online forms do, then that language is not effective to accomplish what it directly says. Florida case law says that the word in a durable power of attorney needs to be “convey.” That is the verb that is required in the document. Most online companies do not have experienced legal attorneys drafting these documents. In many cases, the online durable power of attorney forms, while it may be legally signed in Florida, it may not be effectively worded to accomplish what your power of attorney agent is looking to do.
The wording of the durable power of attorney is very important because in the absence of words, or if the incorrect words are used, a third-party doing business with your agent, such as a bank, insurance company, title insurance company, annuity company, IRA custodian, and so forth, may not accept the action. If you cannot do business using that durable power of attorney document, then you need to go to probate court to seek guardianship. A free online durable power of attorney could end up costing $10,000 in a court guardianship because it is not properly worded. And, when somebody loses their capacity, and they do not understand what they’re signing, they can no longer sign a durable power of attorney. What happens in many cases is that a social worker at the hospital will ask you, “Do you have a power of attorney”, and if the answer is no, the social worker may have a form handy in his or her file that may be outdated, or you go on your initiative of wanting to save money and download a form. As a result, that moment of choosing a free service rather than legal counsel could cost you tens of thousands of dollars in the future.
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To summarize, the change that occurred on October 1st, 2011 for the durable power of attorney document is not as simple as you would think. If the durable power of attorney document is done incorrectly, the incorrect document could end up costing you $10,000 or more in legal fees and costs. The reason for that is that you cannot take action under your poorly-worded durable power of attorney. That would be considered a very costly mistake when a durable power of attorney could easily be around $500.
While the old durable power of attorney documents signed before October 1st, 2011 are still valid, it is a good time to update the durable power of attorney. It would be wise to revise your documents because your estate planning situation may have changed, especially if you are over the age of 65, and/or are in poor health. The durable power of attorney document is effective under the new law once it’s signed. Further, when you sign it, you are still able to manage your own financials. It is important to remember that the person you name in this document can also fully manage your financial needs and decisions. If this power and authority under this document is unsettling, you can inquire with your attorney about whether they could hold the original document and release it until certain conditions are met. That would be a good measure to protect yourself from wrongful use of the durable power of attorney. Of course, the main concern, after the wording of the legal document, is to name the right person. You will want to name someone trustworthy who is not going to use the document to steal from you or others, or who’s not going to manipulate your financials to benefit him or herself. Therefore, to name the correct person is the most important part.
The legal document itself is best provided by an attorney’s office who has a lot of experience with durable powers of attorney documents. This would be an attorney’s office who has worked in the trenches using other attorneys’ and online durable power of attorney documents. My law firm will create documents on behalf of clients. Therefore, our durable power of attorney documents are based on real world in the trenches experience.
If you’re looking to get this important work done, it’s typically included as part of any estate planning package. If you’re just getting a will and not doing a durable power of attorney, then you’re only getting a 25% solution to a 100% full picture. A will does not address all of your financial needs in the event of incapacity or death. In sum, the durable power of attorney needs to be done correctly by an experienced attorney rather than an inexperienced provider. And, you need to understand that it is definitely not a download, print, and sign transaction.
For more information on Durable Power Of Attorney, an initial consultation is your next best step. Get the information and legal answers you’re seeking by calling (904) 398-6100 today.
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