A Springing Power of Attorney is a specific type of power of attorney that is activated only upon the incapacity of the principal party. Upon the principal party’s determination of incapacity by a physician or a Court Order, the agent designated in the Springing Power of Attorney is then able to secure and manage the principal party’s finances and property. The agent has no authority to manage any of the principal party’s property until the determination of incapacity is finalized.
In Florida, a Springing Power of Attorney is no longer recognized as a valid document. Instead, Florida recognizes the validity of a Durable Power of Attorney so long as it is executed before two witnesses and a notary public. A Durable Power of Attorney and the powers given to the agent are valid and activated the moment the principal party executes the document. The agent can manage the finances and property of the principal party without the need to first obtain a letter from a physician or Court Order regarding the principal party’s level of incapacity. The powers given to the agent end the moment the principal party passes away.
A Durable Power of Attorney certainly provides a significant amount of authority to the agent. It is imperative that the agent is trustworthy, responsible, and will serve in the principal party’s best interest if or when the agent needs to assist the principal party. The agent must uphold his or her fiduciary responsibility to manage the assets properly.
In a time of crisis and without properly executed estate planning documents, including a Durable Power of Attorney, family members may find themselves in a difficult situation where they need to provide care for a sick or incapacitated individual without the legal authority or financial ability to do so. Without a Durable Power of Attorney, it is likely that the only way a family member can access and manage someone’s finances and property is to file a guardianship against the vulnerable family member.
If you have any questions regarding your estate planning needs or the necessity to file a guardianship case for a loved one, please contact Attorney Rebecca Schultz.
