What if there is no paragraph titled "Effectiveness" in a durable POA, Designation of Health Care Surrogate and Preneed Guardian
Dade City, FL |
My sister and I are named as our mother's attorney-in-fact in her Durable POA, Designation of Health Care Surrogate and Preneed Guardian document. Her dementia is increasing. I have the POA but do not see anything stating when it goes into effect.
As stated by the other attorneys, a Durable Power of Attorney and/or Health Care Surrogate are effective the date the document is signed unless the document states otherwise. Please have an attorney review the documents to confirm the effective date and confirm that the documents were executed correctly.
Answer does not constitute legal advice. (727) 471-0039 or email@example.com, This answer is provided for informational and/or educational purposes only, does not constitute legal advice, and does not create an attorney-client relationship. Adam is a Florida Attorney practicing in areas of Estate Planning, Elder Law, Trusts, Probate, Guardianship, and Business Law. Actual legal advice can only be provided after completing a comprehensive consultation in which all of the relevant facts are discussed and reviewed.
In Florida, we used to have what were called "Springing" powers of attorney that sprang into effect upon the incapacity of the grantor; but those have been legislated away. The problem was that banks complained that people were coming in with DPOA forms claiming that the grantor was incapacitated and demanding to be able to access their funds.
So, nowadays, once a grantor signs a power of attorney or one of the advanced directives that you listed, then it's effective right away. By the way, make sure that the pre-need guardian form gets filed in the county where she lives. File it with the county recorder. It will cost about $10 per page, give or take. That way, if/when there is ever a guardianship proceeding in that county, her wishes while she still had capacity to voice them are on file and can be given due consideration by the Court.
Does the durable power of attorney include powers to make health care decisions? If not, then you might want to help her to get one of those so she can executed it during a period of lucidity. Declarations of Health Care Surrogate are pretty good; but they require more red tape as far as an official finding of incapacity than a HC DPOA which is effective regardless of any formal findings.
Dennis Phillips is an attorney and financial planner based in South Florida. He is a member of the Florida bar, he holds the nation-wide Series 65 Investment Advisor license, and holds an insurance license in Florida and Virginia.
Disclaimer: The response above is not legal advice and does not create an attorney/client relationship. The response is in the form of legal education and is intended to provide general information about the matter within the question. Oftentimes the question does not include significant and important facts and timelines that, if known, would significantly alter the above