Durable Power of Attorney

Enhanced Durable Power of Attorney

A Florida Durable Power of Attorney allows you to designate who can make decisions for you should you be unable to make decisions for yourself. This decision-maker is referred to as your “agent” or “attorneyin-fact.” Your agent is often empowered to sign your name on contracts, handle and access your finances and real estate, sometimes they can be authorized to create/amend trusts, or deal with insurance companies and apply for government benefits.

Why do we call our POA “enhanced?”

What is the difference between an Enhanced Durable Power of Attorney and an Ordinary Durable Power of Attorney?

First, it’s important to stress that a Durable Power of Attorney (DPOA or POA) is not a once-size-fits-all document. There is no such thing as a general durable power of attorney that empowers the agent / attorneyin-fact to be able to do anything and everything. The POA must very specifically delineate what the agent can or cannot do. This is why canned documents found on the internet just won’t do.

As an elder-law / estate planning attorney, I firmly believe that an Enhanced Durable Power of Attorney is the single most important document you can sign.

A well drafted Florida POA is soimportant because of the following all-too-common scenario:

The spouse or adult child of a loved one comes to me for MedicaidPlanning assistance on behalf of their loved one. Unfortunately, their loved one has recently had a stroke/heart attack/dementia progression or any other event that has created a situation where the loved one is cognitively unable to make decisions on his/her own. There is no previously-signed durable power of attorney (or there is an inadequately drafted DPOA).

Unfortunately, I then have to explain to the spouse or adult child that they will require an expensive guardianship proceeding in order to become empowered to make the decisions necessary to allow me to protect their loved one’s assets and apply for government benefits.

In essence – without a properly drafted enhanced durable power of attorney, my client’s family (and by extension the elder law attorney) becomes hamstrung and is unable to act.

Remember, when signing an Enhanced Durable Power of Attorney, you are not giving up your rights -- you are just picking a person (or people) who can step in and act for you now, and should you ever become unable to act for yourself. I often tell my clients: either you choose now, or it’s possible we’ll need to rely on a judge to choose later.

Why Ordinary Durable Power of Attorneys May Not be Sufficient

While regular DPOAs can be immensely helpful , elder law and Medicaid planning attorneys utilize special "enhanced" language focused on aging and long-term care issues.

Some provisions that an ordinary DPOA may not contain:

1) specific authorization for the agent(s) to create qualified income trusts.
- the general trust creation provisions found in regular DPOAs are not sufficient.
- sometimes the language is enough, but the proper section has not been initialed (which has been a requirement since 2011!)

2) authorization to apply for government benefits, such as Medicaid.

3) authorization (where desirable) for the agents to gift to themselves regular DPOAs often limit this ability authorization to sign admissions agreements for life care facilities; and authorization to apply for health and long-term care insurance benefits.

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