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Caution must be taken when
signing a Durable Power of Attorney because it is valid and the agent may act
immediately upon signing the document. He or she may use the document even if
you are competent!
As of January 1,
2002, a new Durable Power of Attorney (DPOA) is available that restricts the
agent from acting until your doctor determines you are incapacitated to handle
your financial matters. This new DPOA is called a Springing DPOA.
It is recommended that you keep the
original document in your possession and tell the agent where he or she can
locate the document if it is needed. The power is revoked if
you are adjudicated incapacitated by the Court, or you pass away, or you revoke
it in writing.
In Florida, the Durable Power of Attorney must be signed in the presence of two
witnesses and a notary public. The Durable Power of Attorney law was rewritten
in October, 1995; therefore it is important to have a Durable Power of Attorney
signed after this date.
Keep in mind that even though your agent is required to act in your best
interest, there is no formal supervision of your agent's actions. It is very
important to name someone you trust completely.
Property subject to a Durable Power of Attorney can include all real and
personal property; including stocks, bonds, mutual funds, bank accounts, and
other intangible personal property.
For Medicaid planning, it is important that the Durable Power of Attorney allow
gifting, however, due to the possibility of your agent abusing the power, it is
imperative that you discuss this with an elder law attorney before you include
this language in your document.
Many banks and brokerage firms require you to sign their own Durable Power of
Attorney forms. Make sure you check with all of the holders of your assets and
comply with their requirements.
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