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Does It Matter If My Power of Attorney Is “Durable”?


Not all powers of attorney are created the same. Under Florida law, there is a special type of document known as a “durable” power of attorney. What makes this different from a regular power of attorney? The answer has to do with the capacity of the person signing the power of attorney–or more precisely, their lack of capacity.

Authorizing an Agent to Act Even If You Become Incapacitated

Regardless of type, all power of attorneys basically do the same thing: It appoints an agent to act on behalf of the principal. With a regular power of attorney, the agent’s authority ends if the principal becomes incapacitated. In contrast, under a durable power of attorney, the principal’s incapacity does not affect the agent’s authority.

In other words, when you sign a durable power of attorney, you are authorizing someone to make decisions for you even if you later become ill, or injured in an accident, and are no longer capable of managing your own affairs.

To illustrate the importance of a durable power of attorney, consider this recent decision by the Florida Fourth District Court of Appeal, Levy v. Levy. This case involves a husband and wife. The husband had a durable power of attorney. When the husband fell ill and needed to be moved into a nursing home, the agent named in the power of attorney signed an agreement to pay a monthly amount of alimony to his wife so she could continue paying the couple’s expenses.

A trial court refused to enforce the agreement, however, believing that the husband’s “potential incapacity” somehow affected the validity of the actions taken by his agent. But as the Fourth District explained, this is precisely the sort of situation contemplated by a durable power of attorney. The appeals court noted, “The entire purpose of a durable power of attorney, as opposed to a regular power of attorney, is to ‘show the principal’s intent that the authority conferred is exercisable notwithstanding the principal’s subsequent incapacity’.”

Here, there was no question the husband signed a valid power of attorney prior to his incapacity. Nor did anyone dispute the document was a “durable” power of attorney. Given all this, the Fourth District said the trial court “was authorized to award alimony” pursuant to the agreement signed by the husband’s agent “despite Husband’s potential incapacity.”

Get Advice From a Lee County, Florida, Estate Planning Lawyer

Keep in mind, even a durable power of attorney is not valid if the principal is incapacitated when the document itself is signed. That is why it is critical to make sure you have a durable power of attorney in place before something happens to you that might require an agent to act on your behalf. Also note that you have the right to restrict or limit your agent’s authority to certain acts. Additionally, Florida law does impose some limits on an agent’s powers, notwithstanding the specific terms of a power of attorney.

An experienced Fort Myers estate planning lawyer can advise you on this and many related subjects. Contact the Kuhn Law Firm, P.A., at 239-333-45289 today to schedule a free confidential consultation.


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