Independence is a word commonly heard from seniors when discussing plans with their families. They want their independence. They have earned their independence. And we aren’t here to disagree.
When it comes to the matters of aging, there is no guarantee that aging will happen in a way that always allows for independent decision-making. Since a power of attorney can only be signed by a person who understands what they are signing at the time they are signing it, it is important to have a plan.
In Florida, your aging plan must include a designated power of attorney.
What is a Power of Attorney?
A power of attorney is a legal document that gives someone the authority to act on behalf of another. The person giving the authority (“Principle”) gives the right to act on their behalf to another person (“Agent”). The person giving the power can grant specific or broad authority to their agent.
Principle: the person giving someone else the power to act on their behalf
Agent: the person receiving the power to act on behalf of the principle
Why Would Someone Need a Power of Attorney?
A power of attorney grants the agent the ability to act on behalf of the principle in a variety of situations when spelled out specifically in the document. The principle may want the agent to represent them in selling a car, home, or other property. They can also designate the power of attorney to make healthcare and financial decisions for them.
What does this mean in real life? If your mom goes into the hospital without a properly executed power of attorney and is currently unable to execute one, the hospital may not communicate with you regarding her condition even if you are next of kin.
So, now what?
In this scenario, the senior could have executed a document that outlined what powers she was willing to delegate, to whom, and in what situations. There are real-life situations when this important document communicates the plan a senior has already put in place. A power of attorney helps a senior stay independent.
- Real estate
- Claims to insurance
- Admission to senior living facilities
Limited Power of Attorney
A principle can execute a “limited power of attorney” for the agent to conduct a specific act. This can include the authority to handle a designated transaction on their behalf, such as selling a home. The power given can be limited to that specific act and once completed, the power of attorney is no longer in effect.
General Power of Attorney
A “general power of attorney” gives very broad powers to perform legal acts on behalf of the principle. While the scope can be broad, the specific activities the agent has authority over must be listed in the document.
Durable Power of Attorney
A durable power of attorney survives the incapacity of the principle. Most powers of attorney granted today are durable powers of attorney. The document stays in effect even if the principle can no longer act or communicate.
Why Do I Need a Durable Power of Attorney?
An estimated 6.5 million Americans aged 65 and older are living with dementia in 2022. This statistic is a grim predictor that an aging plan needs to include a document that is still valid after incapacity. In most circumstances, a properly executed durable power of attorney will prevent the need to initiate guardianship proceedings.
What are “Superpowers”?
Superpowers, unlike traditional powers given with a power of attorney, must be specifically authorized by the principle. In addition to listing the activities that are authorized within the document, a principle must also individually sign or initial next to each superpower granted to an agent. If these superpowers are not authorized in this way, the authority over that decision will not be granted.
Examples of Superpowers
- Authority to create a living trust or amend, modify, or revoke an existing trust
- Making a gift on principle’s behalf
- Creating or changing rights of survivorship or beneficiary designations
- Waiving principle’s rights as a beneficiary
- Disclaiming principle’s rights to property or appointments
A very important superpower for a durable power of attorney in Florida is the ability to apply for public benefits. The principle must designate through signature or initialing the authority to apply for public benefits. This includes Medicaid planning and Veteran’s benefits.
Superpowers Important for Medicaid Planning
- Establish Qualified Income Trust
- Personal care contracts
- Pay taxes
- Apply for benefits
Establishing these specific superpowers in a durable power of attorney for Medicaid planning helps avoid a crisis in the future. A financial plan includes planning for the day when a senior becomes incapacitated, runs out of funds, or – a common fear of married seniors – that their funds will run out, leaving the healthy spouse little to survive on in the years to come. A strategy can be created and implemented, but only if the Medicaid applicant’s agent has been granted the proper superpowers.
Where Should I Obtain a Power of Attorney?
A power of attorney is a powerful legal document. It gives another person authority to make decisions on behalf of another person. A document of this magnitude should be drawn up by an attorney to ensure the specific authority is right for the individual’s circumstances. A consultation with a qualified elder law attorney is key in ensuring the independent senior has a solid plan.
Can I Use A Generic Form I Found Online?
Online or pre-printed documents may ultimately cause more problems than they solve! A generic document that has been found online may not have the specific powers the principle wants to grant or may give too much authority over their affairs. A pre-printed form, or document you created yourself, may fail to provide the protection or authority desired.
Entrusting your financial future to a power of attorney template is not a good idea.
Why are Elder Law Attorneys a Resource We Love?
Elder Law Attorneys are, first and foremost, advocates for seniors and their families. An Elder Law Attorney is a specialist in aging and the important issues affecting the emotional, physical, and financial needs of this population. The ability to use their knowledge and experience to protect seniors is what brings these gladiators to the table every day.
There are benefits and services available to older people. An Elder Law Attorney helps navigate programs that will benefit clients which makes them an invaluable addition to your senior living team. There are so many reasons why Elder Law Attorneys are a Resource We Love and you can read more about them in the Legal and Financial Section of our Blog.