A Durable Power of Attorney (DPA) allows you, the “principal”, to designate someone, the “agent”, to act on your behalf. Depending on the DPA, your agent will have authority to oversee your financial affairs or your medical treatment. Having a DPA is a good idea, but only if it is done properly. Otherwise, a DPA will probably not serve its intended purpose and it might create additional problems. To avoid this, contact an estate-planning attorney to assist you with this issue. Meanwhile, this blog discusses three important reasons to hire an estate-planning attorney to draft your DPA.
1. A DPA is effective right after it is executed.
Before October 2011, a DPA could remain “dormant” after it was executed. This type of DPA is known as “springing DPA” and is not effective until the occurrence of the event specified in the document, like the principal’s incapacity. However, pursuant to a revision to Florida Statutes section 709.2108, a DPA is ineffective if it provides that it is to become effective at a future date or upon the occurrence of a future event or contingency. Therefore, springing DPAs are no longer recognized by Florida and a DPA is effective the moment that is executed. So if you want a DPA to protect your financial affairs in the event that you become incapacitated, your agent will have authority to oversee your finances as soon as the DPA is created. This can be a problem. Even if your agent is a person that you completely trust, like your spouse, the fact that he or she has authority over your finances can be against your interests. An estate-planning attorney from the Law Office of David M. Goldman PLLC conveniently addresses this issue by offering an escrow service in which you chose the attorney as your agent and instruct him or her what to do in the event that the DPA is used. Meanwhile, the DPA will be kept in a secure place and will not be used unless you instruct the attorney to do so, a court mandates the attorney to do so, or two Affidavits from two different Doctors state that you are incapable of deciding for yourself. This way you can be better assured that your agent will not abuse his or her power over your affairs.
2. A DPA is one of the most complicated estate-planning documents.
DPAs involve a series of complex issues that make it more likely to make a mistake in a DPA than in any other estate-planning document. For example, a DPA might not survive the principal’s incapacity or might not be effective if it does not have the appropriate language. An estate-planning attorney knows what language to include in your DPA to protect it from claims against its validity and to help it addresses the issues that need to be addressed in your circumstances.
3. If you ever become incapacitated, you need more than a DPA to address all of your health care needs.
Your agent might need more than a DPA to effectively oversee your medical treatment if you ever become incapacitated. For example, to have access to your medical records, your agent will need a HIPAA release. Also, a living will, although not necessary, can direct your agent to refuse for you medical treatment that will only prolong your suffering. An estate-planning attorney can assist you with gathering all the additional documents needed to create an effective health care directive package to prepare for possible future incapacity.