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What You Need to Know About the Durable Power of Attorney

04/11/2017

What You Need to Know About the Durable Power of Attorney

The essential function of a Durable Power of Attorney (DPOA) is to legally designate a representative or agent to handle your financial affairs, if, for whatever reason, you become incapacitated. Having a DPOA drafted and executed properly, is a critical document in estate planning. In Florida, a properly executed Durable Power of Attorney becomes effective immediately, which means your Agent can access on your behalf immediately and NOT only when you become incapacitated.

However, as reported in The (Wichita Falls TX) Times Record News article, “Tips to make a Durable Power of Attorney work,” sometimes the person to whom you give authority—known as an “agent”—will visit your financial institutions and attempt to get something done on your behalf to no avail. The bank might say “no”, even when they see your perfectly legal DPOA. I have seen this happen many times in my practice, however Florida statutes provides a solution making a financial institution accept a legally effective Durable Power of Attorney.Still, sometimes banks don’t want to recognize a valid POA.

In the eyes of the bank, the DPOA could have been rescinded or even forged. Financial institutions want to do everything they can to protect themselves from lawsuits and damages. Using their own DPOA form is one of those protections. They may want you to use their own forms.

If it is possible, introduce your agent to your local bank or financial institution. This will allow them to meet and get to know each other.

In the event the agent is unable to get the bank’s approval, they should ask why. It may be as simple as changing wording in the document. You can also ask your estate planning lawyer to speak with the bank’s legal department. This may cut through some of the red tape that can be created by front-line staff misinterpreting the bank’s requirements or rationales. On behalf of a client, I recently had to draft a document where one brother delegated his authority to deal with a financial institution to his brother so there would be only one agent.

If all else fails, particularly if you’re the agent and the principal isn’t competent, you may need to file a lawsuit to have the DPOA honored. In some rare occasions, a guardianship is requested. In Florida, the bank can held liable for the legal fees in this lawsuit.

The DPOA is there to protect your interests. We don’t always know in advance when we are going to become incapacitated. Having this in place allows your representative or agent to handle tasks like filing taxes, paying bills and handling the day-to-day financial tasks of life.

An experienced estate planning attorney like DANIEL T. FLEISCHER will be able to help you create a DPOA, along with other necessary documents, so that you and your family are prepared for the unexpected, well in advance.

Do you live in Miami-Dade, Broward, or Palm Beach counties in Florida? Laws are constantly changing-- has your estate plan been reviewed in the last 2-3 years? Call me (954-888-1747) right away for peace of mind. I can help!

  • My practice is exclusively estate planning and probate,
  • I have prepared numerous estate plans in 16 years of practice,
  • I have administered estates and trusts through Probate all over Florida,
  • I am a Certified Financial Planner Professional™, and
  • I am here for YOU today and there for your FAMILY tomorrow.

Reference: The (Wichita Falls TX) Times Record News (March 11, 2017) “Tips to make a Durable Power of Attorney work”

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