9 Reasons You Need a Florida Power of Attorney

Medicaid Planning
Jason Neufeld
July 15, 2020

A power of attorney (POA) is a powerful form of estate planning that grants broad power to a person you choose, called an agent. The agent is granted control of your assets on your behalf if you're unable to control them yourself. Florida Power of Attorney rules changed in 2011 legislation. If you had a POA created before this time, it's still valid, but you may want to consult with an attorney if you need to make any changes to your POA.

In my opinion, the POA is the most important document in your estate plan.

For example, an agent may:

  • Control your investments
  • Pay your monthly bills
  • Maintain your real estate
  • Create trusts to care for your children
  • Apply for government benefits
  • And more (or less) depending on what you want (or don’t want) your agent to be able to do.

Anyone can benefit from a POA, and it's encouraged that anyone who is estate planning sign a POA. You may also want to sign a POA if you're elderly or in bad health.

If you're retiring, diagnosed with a major health issue, or want to plan your estate now while you're fully cognizant and able to, a Power of Attorney is a must-have.

9 Reasons to Discuss a Florida Power of Attorney With Your Estate Planning Lawyer

1. Choose a Trusted Person to Make Medical Decisions on Your Behalf

If you're unable to make your own medical decisions, you can grant a POA to a trusted family member, loved one or spouse to make decisions on your health care. The agent will not be able to make medical decisions on your behalf if you are able to communicate your wishes.

A POA is your chance to allow someone to act in your best interest when you're unable to make decisions on your own.

Health care decisions can also be delegated through a Florida Health Care Surrogate Designation.

2. Choose an Agent to Handle Your Financial and Legal Matters

Financial and family problems often occur when someone's estate isn't properly planned. A POA will allow an agent to handle all financial and legal matters of an incapacitated individual. But, be aware that a durable power of attorney is not a one-size-fits-all document. You cannot just say "my agent can do everything on my behalf...."

Instead, you have to specifically designate what your agent can or cannot do. If the power is not specifically mentioned (and in some cases initialed, such as with the creation of trusts), then the agent will NOT be able to act. Poorly written Florida POAs are the cause of much frustration.

3. You Have Assets You Want to Protect

Do you have an estate? An estate can include:

  • Assets
  • Savings accounts
  • Real estate
  • Investments  
  • Cash

If you have assets, bank accounts, retirement accounts, or real estate, a POA can ensure that these assets are protected if you're incapacitated. This may mean giving access to your checking account to pay your mortgage or to make vital estate planning decisions. When you become incapacitated, Medicaid planning may be needed to help pay for home health care, ALF care or nursing-home care.

4. You Operate a Business

Your business interests don't go away when you're unable to make decisions on your own. Keeping your business operating or choosing what to do with your business can be the responsibility of your chosen agent.

The agent can act on your behalf, unless business agreements say otherwise, to ensure that your business interests are protected.

5. Avoid Guardianship or Conservatorship Issues

You'll be able to choose the person appointed to be a guardian or conservator if you draft a POA. Otherwise, the issue will go to the court and someone else will petition the court for the guardian to be appointed. Guardianship can usually be avoided when a well-drafted durable power of attorney has been signed in advance of becoming incapacitated.

6. Protects Against Financial Abuse Claims

A comprehensive estate plan will prevent the risk of financial abuse claims against the agent chosen. A POA can be extensive, and allow for gifts to be issued and proper asset protection plans to be carried out.

If an extensive POA is in place, this allows for:

  • Protection against financial abuse claims
  • Asset protection plan goals to be met

7. Allows for Asset Protection

Asset protection delays can occur if there isn't an agent in place. When drafted properly, a POA will allow an agent to protect your assets. If a POA isn't drafted properly, the agent may not have the power to protect certain assets, leading to significant financial loss.

Proper planning will ensure that all of your assets are properly protected. As an example, without a properly-drafted durable power of attorney, Florida Medicaid-planning becomes impossible (or requires an expensive and time-consuming guardianship).

8. Ensures Financial Responsibilities are Met

Bills will continue piling up, and interest, penalties, and repossession can occur. An agent can use assets to pay bills, such as a mortgage, to ensure that you can maintain your lifestyle.

9. Provides Peace of Mind

You'll be able to choose an agent that you know and trust. If you don't have a power of attorney and you're incapacitated, someone you don't choose will have control over the decisions of your estate.

As your life circumstances change or an estate grows, it's important to update your POA.

A power of attorney is one of the estate planning measures you need to have an estate planning attorney to help you with. It's crucial to have your power of attorney set up properly — free forms should never be used.

"A power of attorney is an important and powerful legal document, as it is authority for someone to act in someone else's legal capacity. It should be drawn by a lawyer to meet the person's specific circumstances. Pre-printed forms may fail to provide the protection desired," states The Florida Bar.

Jason Neufeld
Jason is committed to assisting and protecting the most vulnerable members of society, through his substantial legal work with the elderly.