Understanding What “Trusting Your Agent” Really Means

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Lifetime legal planning is premised on identifying and empowering someone you can rely on to act on your behalf as needed in the future. This is necessary, even in a marital relationship, because your legal spouse does not have the actual legal authority to act on your behalf in all instances. If you are an unmarried adult, whether age 18 or 81, no one has the actual legal authority to act on your behalf in most circumstances, unless you have so appointed them in a legally recognized manner, or a court of competent jurisdiction has done so.

While Bo Diddley and George Thorogood both recorded the blues hit, “Who do you Love?” what we are discussing here for your own lifetime legal planning is the question, “Who do you trust?” Having great trust in your agent is critical in this process. By statute, a Florida Durable Power of Attorney signed on or after October 1, 2011, authorizes your agent to act for you immediately and binds you to the authorized actions taken as long as they are within the scope and legal authority of the Durable Power of Attorney and permitted by Florida law. This means your agent can act even if you are not yet incapacitated to take such actions for yourself.

Further, based on 2015 legislative changes, your Designation of Health Care Surrogate may now, at your option, also empower your surrogate to make important health care decisions for you immediately. These health care decisions could include the granting of informed consent to a medical treatment plan, access to your protected health information, even if you are not yet incapacitated. Bottom line, if you do choose to legally empower someone to act on your behalf immediately, you had better trust them, and they had better prove to be trustworthy, or you or your care will suffer the consequences.

In selecting and empowering your agents to act on your behalf, it is vitally important to have the right papers or legal tools in place, but also the right agents named in those legal planning documents to honestly and effectively serve your interests as needed in the future. If the paper or the people you’ve chosen to use fail, then so will your lifetime legal planning, often resulting in a clean-up of the damaged caused through the court system. The completion of a full and well thought out lifetime legal plan for you, which includes planning for both the risk of your incapacity or disability, will usually allow you, after due consideration, to name and empower the best team of agents and surrogates to serve your current and future best interest.

Discuss these and other important aspects of selection of your agents and surrogates with an experienced Florida licensed attorney. Members of the Academy of Elder Law Attorneys (“AFELA”) are knowledgeable about Elder Law and Estate Planning in Florida, and can help you reach the right decisions for you and your lifetime legal planning needs.

Authored by Grady Williams.
Edited by Audrey Ehrhardt.
Reviewed by Walt Shurden.