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Power of Attorney

A Durable Power of Attorney can be an effective way for you to avoid some or all of the burdens of a guardianship, although in some cases a guardianship might be necessary even with a Durable Power. As of October, 2011, the Durable Power of Attorney Law will change in Florida and it is important that you know about these changes.

When you become incapacitated, which means you are no longer able to manage or take care of your financial and property interests, you may find yourself being placed in a court ordered guardianship so that a guardian can take care of your assets for you. The drawbacks to a guardianship are that it is a court proceeding that continues for the rest of your life. Because of this, your family and loved ones may not be able to make a decision about your assets without first consulting the guardian, who has the ultimate decision. Another problem with a guardianship is that it can be very expensive. The guardian may charge ongoing fees, the initial costs of the guardianship can be high and an attorney may have to represent the guardianship for all the years it remains in existence. In addition, fees have to be paid to the court for audits, bonds, investigations and related costs.

HOW TO AVOID THE EXPENSE OF A GUARDIANSHIP-CONSIDER CREATING A DURABLE POWER OF ATTORNEY.

A Durable Power of Attorney appoints someone to act, as your attorney in fact, in dealing with your assets and property interests. It allows that person to transfer, sell, invest, mortgage and do all other acts that you yourself would be able to do with your property and assets. The Power of Attorney used to be effective if you are declared incapacitated by medical providers who state in writing, that you are incapacitated. If your incapacity is temporary, then upon regaining your capacity, the Durable Power of Attorney is rescinded. Due to the changes in the Durable Power of Attorney Law, this type of Power of Attorney may no longer be in effect.

The Power of Attorney is a very powerful document and should not be signed without knowing how powerful it may be. Once this document is given to the attorney in fact, it gives them unlimited power over your property. It can be easily misused since a bank or broker will not know, if in fact, there is incapacity or not and if the Power of Attorney has been revoked, and may make the transfers even when they shouldn’t take place. Therefore you should not give the original document to anyone unless and until you are declared incapacitated. Of course by choosing someone you trust, you hopefully avoid this problem.

If you would like a consultation about preparing a Durable Power of Attorney, please call our law firm in Florida at: (954) 229-2226

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