Adding Durability to Your Estate Plan

By: Kevin R. Albaum
Clark, Campbell, Lancaster & Munson, P.A.

Q: How do I delegate authority in the event I become incapacitated?

A: A Power of Attorney is a legal document allowing a person (the “principal”) to delegate authority to an “agent” to act on the principal’s behalf. The document can be very specific and “limited” to allow the agent to complete a specific act such as selling the principal’s car, or it can be “general” to allow the agent to take most legal actions that the principal could also do on her own. Some such powers include creating trusts, making gifts of assets, selling property, accessing bank accounts, or signing contracts and other legal documents.

Generally, a Power of Attorney loses effectiveness when the principal becomes legally incapacitated unless the document specifically indicates otherwise, in which case the document becomes “durable”. A Durable Power of Attorney affords a principal planned protection should a health-related emergency or other unfortunate event causing temporary or permanent loss of capacity occur. Durable Powers of Attorney allow the agent to pay the principal’s monthly bills and make healthcare decisions during the incapacity.

Powers of Attorney drafted in Florida on or after October 1, 2011 are immediately effective from the date of execution. As a best practice, the principal should advise the agent of the Power of Attorney but not provide a copy of the document until the principal would like the agent to use it. The principal could let a family member or attorney hold the document or know of the document’s secure location and instruct the family member or attorney not to give the document to the agent until a certain time or event.

With boilerplate forms at your fingertips on the internet, you may be tempted to go at this venture without an attorney. However, legal help is wise to ensure the Power of Attorney document meets your specific circumstances and ensure that you have adequate protections in place, including protection from abuse of the powers by the agent.

The March 26th edition of “The Law” will address animal cruelty in the recent news and the legislature.

[Kevin Albaum is an estate planning and elder law associate attorney with the law firm Clark, Campbell, Lancaster & Munson, P.A. Questions can be submitted online to thelaw@clarkcampbell-law.com.]

Kevin Albaum

Kevin Albaum

Kevin Albaum was born and raised in Tarpon Springs, Florida. He grew up spending a lot of time on the water either boating, fishing, wakeboarding, or jetskiing. Kevin earned his bachelor’s degree at Florida State University where he competed for FSU’s mock trial team across the country. Immediately upon graduation, he enrolled at Stetson University’s College of Law in Gulfport, Florida due to their specialty program in elder law and his passion for that specific field of the law.

Kevin moved to Lakeland, Florida to join Clark, Campbell, Lancaster, and Munson where he practices in the areas of: elder law, guardianship, estate planning, trust administration, and Medicaid. Since moving to Lakeland, he has become involved with the Alzheimer’s Association Walk Committee, EMERGE Lakeland, and VISTE.
Kevin Albaum