Power Of Attorney vs. Durable Power Of Attorney: What Is The Difference?

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In completing basic estate planning documents, we will prepare a Last Will and Testament, Living Will, Designation of Health Care Surrogate, Declaration of Pre-Need Guardian and a Durable Power of Attorney.  

Some of these may sound familiar to you, including the Durable Power of Attorney, but you may be wondering: What makes it durable? What does durable mean? How will my family and I be affected by a Durable Power of Attorney, and how is it different from a general (non-durable) Power of Attorney? 

Read on for the distinction, plus additional items for your consideration. 

What Does a General Power of Attorney do? 

A Power of Attorney, whether durable or not, allows a person you have named to act on your behalf should you be unable to do so. In Florida, a power of attorney becomes a legal and binding document once signed by two witnesses and a notary public. You may name whomever you choose to be your power of attorney — family member, friend, neighbor, etcetera.  

A power of attorney can be limiting or broad, meaning you may designate exactly what you would like your agent to be allowed to accomplish. The extent of the power is completely in your hands (you are called the ‘principal’) when preparing this document, however, in most situations the agent is given rights to act on your financial behalf.  

In What Instances Would I Need a Power of Attorney? 

There are instances where a power of attorney is not necessary, such as if your bank accounts are jointly owned and operated. The co-owner of the account has the right to act as needed with that account. Brokerage accounts operate in the same way. 

Some examples of when a power of attorney can be used include: writing checks, paying taxes, purchasing real estate, investing in assets, accessing a safe deposit box and more. 

To discuss your particular situation, we recommend contacting our attorneys at Kira Doyle Law for guidance. 

What Makes a Durable Power of Attorney Different? 

Simply put, a Durable Power of Attorney allows your Agent to act on your behalf when you are incapacitated (if a guardian is not appointed for you). A general power of attorney ends if the principal becomes incapacitated, so the importance of also having a durable power of attorney in place for this potential situation is profound.  

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At any time, but especially as we get older, we may find ourselves in this shocking scenario. Having a durable power of attorney named, and the proper documents executed, will ensure that your wishes are carried out regarding matters affecting your property, real or personal. 

Without a durable power of attorney, your loved ones may have to go through a court proceeding to have a guardian named on your behalf to conduct business regarding you and your affairs. This is an expense better avoided. While the agent named in a durable power of attorney can act on your behalf without court supervision, a guardian named on your behalf may experience a heavy hand by the courts to make sure all business is being conducted in a proper manner. The courts can also require a judge’s permission to conduct certain business. 

Do Powers of Attorney Transfer States? 

Here in Florida we have a lot of retirees, so this question does come up! In general, yes, a power of attorney executed in another state is recognized by different states. However, states can choose to not recognize powers of attorney created in another state, so state laws should be checked. Kira Doyle Law can both welcome you to our great state and help you update your power of attorney. 

What Other Kinds of Powers of Attorney are There? 

Power of Attorney for Care of Minor Child — This is a form of a power of attorney where a parent grants authority to another adult to deal with certain custodial issues for a minor child. 

Limited Power of Attorney — A limited power of attorney allows someone you have named to act on your behalf for a limited purpose. There is usually an end date specified in the document, or it is simply used for one transaction. For example, you may execute a limited power of attorney to have someone sign deed paperwork for you if you are out of town. This power of attorney is limited to this singular transaction. 

Is a Power of Attorney Still Valid Following my Passing? 

Powers of attorney do not survive death. Upon the principal’s passing, neither type of power of attorney is valid. Instead, the personal representative of the estate would then take over and handle all financial and legal matters, according to what is stated in the Last Will and Testament. However, an individual can name the same person as their power of attorney and the personal representative of their will, in which case not much may change. 

Ask a St. Petersburg Estate Planning Attorney for Assistance 

You do not have to feel overwhelmed with what certain documents are used for, or what to include in your estate plan. The experienced estate planning attorneys at Kira Doyle Law will guide you through the planning process step-by-step to make sure your particular situation is addressed, your assets are protected, and you have a plan in place to make sure your desires are heard. If you are ready to begin, call our St. Petersburg office at 727-537-6818 to schedule an appointment today!

Estate PlanningKira Doyle