What is a Durable Power of Attorney, and What is Its Purpose

A Durable Power of Attorney is a legal document which conforms to and is governed by Chapter 709 of our Florida Statutes, known as the “Florida Power of Attorney Act”.

Its purpose is to facilitate and authorize another to act as one’s legal and financial agent. The effect is often described as authorizing another to “stand in your shoes” if needed.
The use of a Durable Power of Attorney, involves three different parties. The “principal” is the one who signs the document, giving authority to another. The “agent” is the one which receives the authority. In addition a “third party” relies on the document and acts pursuant to it. A third party is any bank, financial institution, insurance company, accountant or any other entity that the agent presents the document to. All these parties are subject to the provisions of the Florida Power of Attorney Act.

You have executed a DPOA naming your spouse as your agent. Unfortunately, you are tied up in the hospital and the taxes are due.

Can Banks Refuse to Honor a Valid Power of Attorney?

The statute governing Durable Powers of Attorney, address this very issue. It’s helpful to remind folks that there are three parties involved in the use of a Durable Power of Attorney (commonly referred to as a DPOA). First there is the person who assigns such power to act, by signing the document. This person is known as the Principal. Secondly, there is the person who is given the authority and power by the Principal. This person is known as the Agent. Thirdly, there all other persons or entities to whom the document is presented. These parties are defined in Chapter 709, Fl. Statutes, as “third persons”. Even though the word persons is used, it refers to and includes banks, brokerage firms, insurance companies, the IRS, real estate transactions, and other entities, as well as individual persons.

The laws created under Chapter 709 are intended to both enhance the utility of a Durable Power of Attorney, and on the other hand, to protect banks and other third persons from liability.

What Are My Responsibilities As The Personal Representative?

First and foremost, the Personal Representative is appointed to carry out formal administration of the decedent’s estate.   The Personal Representative can be a person, bank or trust company whom is appointed by a probate judge. If you have been chosen to be the personal representative of a probate estate, it is important you understand your responsibilities.

In Florida, the Personal Representative of a probate estate is to collect the assets of the decedent and provide payments of valid creditor claims and tax liabilities.  After the assets are collected and creditors paid, the Personal Representative makes distribution to beneficiaries of the estate either as stated in the decedent’s Will or Florida Intestacy statute discussed here.

It is important that the Personal Representative is represented by an experienced attorney. Improper administration by the Personal Representative could open them up to liability for any harm caused.  If you have any questions, please Contact us for a free consultation.

What Is Probate?

We hear the term probate a lot, but what is probate? Probate or probate administration is a court supervised distribution of a decedent’s assets to their beneficiaries and payment of their debts to creditors. Typically probate distributes a decedent’s assets according to their Last Will and Testament. However, if no Will existed at the time of death, their assets will pass by way of Florida’s Intestacy Statute discussed in our post on“Why Should I Have A Will”.

Not all of a decedent’s assets must past through probate to be distributed. Only probate assets must pass through probate.  Probate assets are those who were owned solely by the decedent, such as bank accounts without a beneficiary named or real estate titled in the name of the decedent only.

If a loved one has passed away with assets, it is important to contact an experienced probate attorney to assist you in opening and navigating though probate. Please contact us at any time for a free case evaluation.

Why Should I Have A Will?

A Will is a very important and powerful legal document which dictates what happens to your property after you pass away. The property you own at death is called your estate.  Without a will, your estate will be distributed to your heirs, according to Florida Statutes Chapter 732.

There is a misconception that when you die without a will, the state or government automatically receives your property.  This is not necessarily true. However, this could become the case if there are absolutely no heirs to take your property.   If you have property that you wish certain people to receive upon your death, such as wife, children, family, or friends, it is important to have a Will.

If you do decide to create a Will, it is important to have the help of an estate planning attorney. If a Will is improperly executed, it might not be accepted by the court and your estate would be distributed as if you did not have a one.