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If a person becomes incapacitated and is no longer able to make their own decisions, a power of attorney is probably the most important document an individual should have in place to protect his or her financial and medical well-being. It is of utmost importance to have a power of attorney to ensure an individual’s wishes are carried out and he or she is in control of their future in the unfortunate event of incapacity. Without a power of attorney, one could literally lose control of his or her life.

The power of attorney is a legal document in which an “attorney-in-fact” is named to manage the person executing the power of attorney’s health, business, and/or personal affairs. While many people assume that a power of attorney is used only if the person signing the power of attorney becomes ill or incapacitated and no longer able to make these important decisions, it actually goes into effect the moment it is signed. Usually, the attorney-in-fact is the person’s spouse, child, or trusted friend or relative. Florida law allows for any individual over the age of 18 who has a sound mind, or a financial institution with trust powers that has a place of business in Florida and has authority to conduct trust business in Florida to serve as an attorney-in-fact. A not-for-profit corporation may also serve as an attorney-in-fact.

The attorney-in-fact comes to possess any powers that are delineated in the power of attorney document. Therefore, it is important that you discuss with your elder law attorney exactly what you wish you delegate to this individual. The delegated responsibilities can range from paying your bills, making financial transactions with your bank or retirement accounts, or even suing someone on your behalf. Your elder law attorney can describe the various delegable powers to you. The power of attorney document will be drafted to specify exactly what powers the person signing the power of attorney has assigned to the attorney-in-fact.

It is important to point out that a power of attorney can be a potentially dangerous instrument. If the attorney-in-fact is not a trustworthy character, the power of attorney can effectively become a license to steal. Therefore, it is extremely important to give serious consideration to who you want to delegate this enormous responsibility. The attorney-in-fact that you choose should possess common sense, a willingness to be open to the professional opinion of others, good business judgment, and a willingness to comply with what is in the principal’s best interest. Ideally, the attorney-in-fact should live nearby so that he or she can easily be “hands on” when the time to act comes.

A well drafted power of attorney will include special provisions for planning in the event you need Medicaid planning. It should be drafted by an attorney familiar with the issues involved in long-term care planning. Since the power of attorney goes into effect immediately, it is important that you discuss with your attorney what you should do with the document after it is signed. Who should get the original, should you keep the original document, and where it should be placed for safe-keeping are all things to discuss with your elder law attorney and your family.

If you believe that a power of attorney may be a necessary part of your estate planning, or have any questions concerning your need for a power of attorney, please contact Rooth Law Group’s estate planning attorneys for a consultation.