By: Barry E. Haimo, Esq.
May 19, 2015
Can My Power of Attorney Document Make or Change My Will?
A power of attorney document allows a designated fiduciary to help you keep your financial and administrative affairs in order. If you wish, multiple agents can be appointed, and they can either serve simultaneously or succeed each other. Only one type of power of attorney exists in Florida, the durable power of attorney. You have to be very careful when creating this type of power of attorney, because it becomes effective the moment you execute it.
This document grants your appointed agent, or your “attorney-in-fact,” the legal authority to make important decisions on your behalf when you become unable to do so yourself. As the creator of the power of attorney document, you can decide what types of decision-making powers to grant your agent, or attorney-in-fact, and specify these powers in the document.
In the video below, I address the question of whether or not a power of attorney document can allow someone to create or change another person’s will.
While a power of attorney cannot grant your appointed agent the power to make, change or revoke your will in Florida, there are many other types of decisions that you can give your attorney-in-fact the power to make, including:
Financial decisions. If you become ill or incapacitated, you can set up a financial power of attorney that allows your appointed agent to handle your finances. This could include paying bills, making investments, and selling property.
General decisions. By creating a general durable power of attorney, you can authorize your attorney-in-fact to act on your behalf in a variety of situations. A general power of attorney can cover a variety of actions that your appointed agent can perform on your behalf. However, it is important to note that under a change in Florida’s law that went into effect in 2011, any powers you want your agent to have need to be expressly outlined in the document. It is no longer permissible to say something like, “any action not mentioned otherwise.” Additionally, in order to give certain powers to your agent, the law requires you to individually sign off on them. These include:
- Making or changing beneficiary designations
- Making or changing rights of survivorship
- Making gifts (subject to statutory limits)
- Setting up an inter vivos trust
- Disclaiming property
- Disclaiming powers of appointment
- Waiving the principal’s right to be a beneficiary on a joint and survivor annuity (such as having a retirement plan with a survivor benefit)
- Terminating, revoking, modifying, or amending a trust that already exists (the trust instrument must also specifically authorize the agent to exercise this authority)
There are also a number of things the new law explicitly prevents agents from doing in addition to creating or revoking a will, including:
- Voting on the principal’s behalf in a public election
- Taking an oath and affirming facts speaking to the principal’s personal knowledge
- When the principal has been named a court-appointed fiduciary or trustee, exercising that authority
- When the principal is under a contract to provide “personal services,” performing that contract for them
BARRY HAIMO: Generally, a power of attorney will not be used to create estate documents. However, if very clearly included and specified in a power of attorney—and initialed—it may be able to give enough power to attorney in fact to create a will.
If you are seeking to create a power of attorney that will ensure your wishes and best interests are protected in the event of your incapacitation, we invite you to contact Barry Haimo at Haimo Law. Mr. Haimo can work with you to create a document that accommodates your unique needs and preferences, and safeguards your well-being if the worst should happen.
Barry E. Haimo, Esq.
Strategic Planning With Purpose
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