ALL POWERS OF ATORNEY ARE NOT CREATED EQUAL

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Written by David Jacoby

Reviewed by Debra Simms

Many of my clients have already executed a Durable Power of Attorney. However, it is important to note that all Powers of Attorney are not created equal.

The laws regarding Powers of Attorney are not stagnant. The last change in the Durable Power of Attorney Statute in Florida occurred in 2011. The new law does not affect Powers of Attorney which were executed prior to 2011; however, as Powers of Attorneys age, it may become increasingly difficult to get a third party, such as a bank or financial institution, to accept the older documents.

Therefore, it is a good idea to keep up with the statutory changes, while you are still healthy. The Principal (the individual executing the Power of Attorney) must be mentally competent to create a new document.

Another issue is that outdated documents might not have all the language required or critical in the new documents. As an Elder Law attorney, I am focused on those provisions in a Durable Power of Attorney which enable the Agent (the individual given the power to act on behalf of the Principal) which assist in implementing a Long-Term Care Plan as may be necessary.

A common provision which is missing from many Durable Powers of Attorney is the right to “create” a trust for the Principal. This issue becomes extremely important when applying for Long-Term Care benefits through Medicaid if the individual’s income exceeds Medicaid’s gross monthly income cap (presently $2250 per month). In this case, a Qualified Income Trust is required for eligibility However, if the individual is incapacitated, does not have a living spouse, and does not have a Durable Power of Attorney which specifically contains the right to “create” a trust, then a Guardianship proceeding might be required. This involves a lengthy and costly court process.