Every adult should prepare for possible loss of mental capacity, whether by accident, dementia, stroke, or other cause, by signing a durable power of attorney, which is a document that designates an agent to act for the principal.
There are different kinds of powers of attorney. It may involve only financial matters, or only health care matters, or both. It may involve only specific property, or may include all matters the principal could sign. It may be durable, or not. If the power of attorney is expected to be valid after a person has become incapacitated, it must be durable, which means it must contain certain required language. A power of attorney without that language will be invalid when it is needed. In Florida, a power of attorney must have two witnesses and be notarized, even if signed in another state.
When a person reaches the age of eighteen in Florida, he or she is legally an adult. Parents no longer have the right to take any action on behalf of adult children. If a college-age child has an accident, and has not signed such documents, the parents have no authority.
If an incapacitated person has not granted a power of attorney, a guardianship may be required. Guardianship is an expensive, time-consuming, and embarrassing court process. It can be necessary even when a married person is incapacitated and the spouse needs to take action regarding the home or assets in the incapacitated spouse’s name.
Powers of attorney are an important part of estate planning. Once a person has lost capacity, it is too late to create a power of attorney.
Attorney Michael A. Pyle, of Pyle, Dellinger & Duz, PLLC. 1655 North Clyde Morris Blvd., Ste. 1, Daytona Beach. Phone: 386.615.9007. E-mail: mikepylelegal.com or website: www.pylelegal.com