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Articles Tagged with durable power of attorney

By: Jacqueline R. Bowden and Phillip B. Rarick, Miami Estate Planning Attorneys

A power of attorney is a legal instrument you may give to a trusted family member or friend  (commonly called your attorney-in-fact or agent) to manage your financial affairs and act on your behalf. The person creating the document is referred to as the principal. A Durable Power of Attorney (DPA) differs as it remains effective after the principal becomes incapacitated. In order for a DPA to remain effective it must include language stating that subsequent incapacity will not affect the powers of your agent.

Note:  Florida’s Durable Power of Attorney law was completely rewritten effective October 1, 2011.   See New Florida Durable Power of Attorney Law Makes Sweeping Changes.  If you have a DPA dated prior to October, 2011, we strongly recommend that you update your DPA.


The Florida legislature recently enacted the “Florida Power of Attorney Act” (“FPOA”, Fla. Stat. §§709.2101-.2402), fundamentally overhauling existing law, and making sweeping new changes.   Even though the new law recognizes durable power of attorneys (“DPA’s) executed under the prior law, we are advising clients to update their DPA, if more than a year old, because the changes are so comprehensive.  For Florida licensed attorneys who receive our Alert, we are making available at cost our new “Super DPA’s” drafted to take advantage of the new law.

Effective Date: The effective date of the FPOA is October 1, 2011.   “Legacy” POA’s, or those signed before October 1, 2011, are not invalid, but the action of the agents or attorneys-in-fact under Legacy POA’s must be interpreted under the new law.

______ #1.      Trust Funding. After we signed your trust, we reviewed the funding of your trust and I gave you detailed Funding Notes.  Have you followed up on these instructions?   Funding is simply the transfer of your assets into your trust.    It is a good idea to annually review the funding of your trust. It is also advisable to annually sign a new assignment of assets into your trust, that will help sweep into the trust assets acquired to date.

______#2.       Successor Trustee. This is the person you have appointed to step into your legal shoes if you become incapacitated – in other words, one of the most important decisions you can make. Who have you appointed to take charge if you are incapacitated? What is the order of succession of trustees who will take over management of your financial affairs if you are unable to do so?    If you have any question whatsoever about your order of succession, please call the office.

______#3.       Transitions. Has there been a marriage, divorce, or separation of anyone named in your will or trust?    Has there been a birth or adoption of a child or grandchild?  If so, your estate plan may need to be amended.

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