Will My Power Of Attorney Expire?

Individuals preparing powers of attorney (POA) to work as part of their comprehensive estate plans often have a number of practical as well as legal questions about how to ensure that these documents function as intended. “Will my power of attorney expire?” is a particularly common question, in part because many people draft and execute powers of attorney to make sure that someone will be able and authorized to manage affairs on their behalf in the event that they themselves become incapacitated – and a document that expires just when it is needed would obviously be unhelpful for this purpose. The truth is that whether a power of attorney expires will depend on provisions established in the document itself, and whether eliminating the possibility of expiration makes sense in a particular case will depend to a large extent on what the document is meant to achieve. To get help reviewing your options for a power of attorney in Florida and gain the benefit of a professional legal perspective, consider reaching out to the experienced estate planning team at Loughlin Law, P.A. Reach our Boca Raton office today by calling 561-559-6214.

What Is a Power of Attorney?

A power of attorney is a type of legal document. While most people in the United States are used to seeing the word attorney used as a synonym for lawyer, this familiar usage technically only applies to an attorney-at-law – someone who is authorized to “represent” their clients by acting on their behalf in legal matters. The attorney referenced in a power of attorney is a different type, known as an attorney-in-fact.

How a Power of Attorney Works

A power of attorney grants the attorney-in-fact the authority to act on behalf of the individual who creates the power of attorney in all the matters specified in the legal document. The person creating the document is known as its “principal,” and enjoys considerable latitude in determining the matters in which the individual they designate to be their attorney-in-fact, or agent, will have the authority to act on their behalf.

Power of Attorney Limitations

The legal requirements for creating a valid power of attorney vary from state to state. In Florida, one of the most important considerations to remember is that it is crucial for the principal to explicitly state, in the power of attorney, each area and type of action in which they wish the agent to have the authority to act on their behalf, as Fla. Rev. Stat. § 709.2201 establishes that a power of attorney must expressly grant each “specific authority” the principal wishes to convey to their agent. Some times of authority, outlined under 709.2202, require a separate enumeration and signature (or initial). An experienced Florida estate planning attorney with Loughlin Law, P.A. may be able to help you determine the specific authorities you will need to explicitly grant to your agent in order to ensure that the power of attorney achieves your goals.

What Is Durability in Powers of Attorney?

Broadly speaking, powers of attorney can be classified into three types on the basis of when they take effect and under what conditions they remain valid. These three categories are:

• Durable
• Non-durable
• Springing

Although many people associate the word “durable” with longevity, none of these classifications has anything to do with how long the power of attorney lasts, although a “springing” provision can be written so as to specify a start date.

Durable vs. Non-Durable Power of Attorney

Durability, as noted, is not about the length of the POA’s effectiveness. Instead, durability for a power of attorney is determined with reference to whether the POA remains valid in the face of a specific condition: The incapacitation of its principal. A durable power of attorney is one that is not automatically “terminated” by a finding of the principal’s incapacity. A non-durable power of attorney expires automatically if the principal is found to be incapacitated, as described in Fla. Rev. Stat. § 709.2109.

Springing Power of Attorney

A “springing” power of attorney contains a clause that allows the POA to “spring” into effect, either on a date specified in the power of attorney document or when certain conditions (similarly outlined in the document) are met. A springing power of attorney can be useful for individuals who may want someone else to act as their agent only if they are themselves unavailable.

People who manage complex business or financial matters and who may be out of contact for extended periods while traveling may set up a springing power of attorney that allows a trusted individual to make time-sensitive decisions in their place, either throughout the planned travel dates (springing POA based on date) or if they themselves do not respond to attempts at communication within a pre-specified timeframe (springing POA based on circumstances). For similar reasons, individuals who are preparing for a major surgery may set up a power of attorney allowing a close associate to manage their affairs during the recovery process. Notably, most people would likely want the springing power of attorney in this second example to also be durable, in case the operation does not proceed according to plan; the traveler might or might not choose to make their POA durable as well.

Types of Powers of Attorney in Florida

Springing provisions, and the legal language for structuring a durable vs. non-durable power of attorney, generally apply throughout the United States. However, many states also categorize powers of attorney in another way, dividing these legal documents into financial or general (this is typically the “default” type for a power of attorney) and medical (also sometimes called a power of attorney for healthcare). In these states, it is very common for the laws governing powers of attorney executed within those states to specify that all powers of attorney are durable unless they contain explicit provisions to the contrary.

Florida does have a document that serves broadly the same functions as the medical power of attorney used in many other states – but in Florida this document is not typically called a “power of attorney,” but rather a Designation of Health Care Surrogate, with a statutory form provided under Fla. Rev. Stat. § 765.203. A financial power of attorney may need to be durable or set to expire, depending on the purpose intended by the individual putting the POA into effect. A power of attorney for healthcare, on the other hand, will need to be durable almost by definition. Unsurprisingly, then, in Florida – where the document used for appointing someone to make medical decisions on your behalf in the event that you are incapacitated is not usually called a power of attorney – the state’s laws do not apply the presumption of durability. Instead, individuals wishing to ensure that a power of attorney will allow the designated agent (or agents) to carry on the management of the principal’s financial affairs even if the principal is medically incapacitated will need to include an explicit provision to that effect.

Power of Attorney Expirations

Besides the incapacitation of the principal, there are a number of other circumstances under which a power of attorney expires under Florida law. One of the most important of these automatic expirations for estate planning purposes is the provisions of Fla. Rev. Stat. § 709.2109(2) under which a power of attorney will “terminate” if the agent dies, or if the agent becomes incapacitated. The agent may also be removed by a court, although this outcome is relatively uncommon. Because misfortunes can befall the agent just as much as the principal, many individuals preparing their powers of attorney prefer to name a secondary attorney-in-fact to take the designated agent’s place in the event that the person they have named is unable to fulfill the duties of an attorney-in-fact when needed. A Florida estate planning lawyer may be able to help you prepare a power of attorney that names both a primary agent and a “reserve” or secondary agent who can take up the agent’s duties if necessary.

Speak With an Experienced Estate Planning Lawyer

Powers of attorney are flexible and highly customizable estate planning tools that can serve a variety of important functions. One of the many ways in which a power of attorney can be adapted to suit the needs of an individual principal and their circumstances is in determining whether the power of attorney expires, and under what conditions. There can be advantages and disadvantages to creating a durable power of attorney, as well as to allowing the agent’s authority to expire. Consulting with an experienced estate planning lawyer may help you to determine the options that make the most sense for your personal estate planning goals. Call 561-559-6214 to schedule an appointment with Loughlin Law, P.A. and gain personalized advice for your estate planning needs.