They taught you how to drive, helped with homework and mended skinned knees. Now, as your parents age, the roles will reverse. As they struggle to maintain their independence while navigating ailing mental or physical health, you will be responsible for their care. A power of attorney can make this easier.
A power of attorney authorizes another person to make decisions, particularly in regards to finances or health, on your behalf. In Florida, a durable power of attorney ensures that these decisions can be made if and when the individual experiences cognitive decline or medical emergencies.
In this article, we’ll cover
- What Is a Power of Attorney for the Elderly in Florida?
- Why Do Families Set Up Power of Attorney for Elderly Parents?
- Types of Power of Attorney in Florida (including general, medical, durable, limited and springing power of attorney)
- What Are the Limitations of Powers of Attorney in Florida for the Elderly?
- Power of Attorney vs. Guardianship
- Power of Attorney Responsibilities
- Discussing Power of Attorney Agreements With Your Parents
- How to Get a Power of Attorney in Florida for Elderly Parents
- How much does a power of attorney cost in Florida?
What Is a Power of Attorney for the Elderly in Florida?
A power of attorney is a legal document that grants one person (the agent) the authority to act on behalf of another person (the principal). In securing a power of attorney for an elderly parent in Florida, the caregiver would be the agent and the parent would be the principal. This document ensures that a trusted individual can manage the parent’s affairs if they become unable to do so.
A power of attorney must be signed by the principal and two witnesses. For the document to be legally binding under Florida law, a notary must acknowledge the principal’s signature. That being said, it is not possible to obtain a power of attorney when someone is no longer of sound mind. In this situation, a guardianship arrangement will need to be established, which is a more complex undertaking.
A power of attorney may also call upon a third party like a bank, doctor or lawyer. Third parties are a safeguard, ensuring that the principal—caregivers, adult children or relatives—is making decisions that honor the agent’s wishes.
Why Do Families Set Up Power of Attorney for Elderly Parents?
As you and your parents look toward the future, it is essential to plan for a time when they cannot manage their own affairs. Establishing a power of attorney while your parents can have full input into their future gives the whole family some peace of mind.
It is worth noting that a power of attorney terminates if the elderly parent becomes incapacitated. For this reason, families often set up a Florida durable power of attorney during the early stages of dementia and other diseases affecting mental health. A Florida durable power of attorney comes into play when your parents can no longer make sound decisions on their own.
Types of Power of Attorney in Florida
There are several types of powers of attorney in Florida. Helping plan your parents’ future requires that you understand the crucial differences between these documents.
General Power of Attorney
A general power of attorney grants an agent the authority to act broadly on the principal’s behalf by making any needed financial, business, real estate and legal decisions.
More specifically, a general power of attorney gives an agent power to:
- Trade and sell stock
- Pay bills on the agent’s behalf
- Enter contracts for utilities
- Sign legal documents
A general power of attorney is best used for short periods of time when a principal is unable to mentally or physically manage their affairs. It is important to note that this legal agreement is nullified if and when the principal becomes incapacitated.
Medical Power of Attorney
A medical power of attorney, also known as an advanced directive or living will, allows the principal to name someone who can handle their healthcare decisions when they can no longer do so. The medical power of attorney ensures that the aging relative’s or parent’s medical wishes are respected. A do not resuscitate order, for example, may be included in the living will.
Further, the advanced directive will give an agent authority over:
- Medical records
- Selection of long-term living facilities
- Organ donation
- Surgeries
Durable Power of Attorney
A Florida durable power of attorney allows the agent to make all medical and financial decisions, no matter the principal’s mental or physical health. As previously mentioned, a power of attorney is nullified if and when an elderly parent becomes incapacitated. That is to say, if a senior is in coma or has experienced significant cognitive decline because of dementia, the legal agreement is void.
No matter the parent’s state, a Florida durable power of attorney allows the child or relative to:
- Pursue medical treatments
- Sell real estate or stock
- Address monthly expenses
- Select long-term living
Limited Power of Attorney
Whereas a general power of attorney grants an agent the power to act broadly on the principal’s behalf, a limited power of attorney narrows the agent’s authority. Also called a special power of attorney, this legal document allows an adult child to act on behalf of an aging parent for a specific purpose and for a short period of time.
For example, if a parent is hoping to sell out-of-state property but would prefer not to handle the details themselves, they may select a close family member as a principal. Limited powers of attorney are also helpful for:
- Buying and selling stock
- Providing access to safety deposit boxes
- Filing taxes
- Transferring funds from a bank account
Springing Power of Attorney
A springing power of attorney is a type of Florida durable power of attorney that only goes into effect when certain conditions, such as incapacitation, are met. Older adults typically pursue a springing power of attorney as a means of maintaining their autonomy while ensuring that their future medical and financial needs will be met.
Unfortunately, however, this legal document can foster unnecessary stress for children or relatives of the elderly parent. Before an adult child can make decisions for their incapacitated mother or father, they must secure a “determination” or the parent’s incapacity. This determination is typically completed by a doctor and can take days to weeks.
What Are the Limitations of Powers of Attorney in Florida for the Elderly?
Though power of attorney for elderly parents in Florida generally grants children or close relatives with broad power over financial and medical decisions, there are several limitations. These include:
- The need for legal competence. An aging parent cannot sign a power of attorney if they are legally incompetent. Only a mentally competent individual can appoint an agent to manage forthcoming decisions. This constraint underscores the importance of being proactive if a parent is diagnosed with a progressive condition like dementia.
- Powers of attorney are void if and when a parent becomes incapacitated. Unless a parent pursues a Florida durable power of attorney, the agent loses all authority if and when the parent becomes incapacitated. If, for example, a mother experiences immense cognitive decline, the adult children can no longer make financial or medical decisions on her behalf unless she has a durable power of attorney.
- An agent cannot transfer the power of attorney to another person. An agent may think they can decline their fiduciary responsibilities at any time. However, for this to occur, the principal must have appointed a co-agent or still be competent to appoint someone else to act on their behalf.
Additionally, a power of attorney in Florida becomes void when the principal passes away. That being said, unless the agent is also the executor of the principal’s will, they will lose all control when the elderly parent dies.
Power of Attorney vs. Guardianship
As previously noted, a power of attorney is a legal document in which a principal selects an agent to make financial and medical decisions on their behalf. Comparatively, guardianship is a legal relationship dictated by the court system when an individual is no longer capable of making personal decisions for themselves and a power of attorney does not exist.
A friend or family member typically initiates the legal proceedings for guardianship. A medical examination by a licensed practitioner is integral to these proceedings as it will determine the individual’s incapacity. From there, the state will appoint a guardian to the individual. Though this guardian can make various medical decisions, many decisions will require state approval.
Since guardianship is complicated and restrictive, aging parents need to get a power of attorney early. A Florida durable power of attorney ensures that a trusted individual will be making the parent’s financial and medical decisions, no matter their physical or mental state. It also lessens stress on friends and family members.
Power of Attorney Responsibilities
Being appointed as a parent’s agent comes with many responsibilities. In essence, you are legally bound to act in the best interest of your mother or father’s financial and medical health. However, you are also legally bound to fulfill their wishes, even if those wishes are incongruent with your own.
The duties of an agent will be dictated by the power of attorney document. It is best if these expectations are discussed and later clarified in writing. For example, a parent may expect their daughter to file taxes, buy and sell real estate, monitor bank accounts or pay monthly bills. A parent may also expect their daughter to make decisions regarding long-term care, medical procedures and even whether or not life support should be pursued.
Serving as an agent should not be taken lightly; agents can be sued for breaching their fiduciary responsibilities. Therefore, it is important to understand the principal’s wishes and keep accurate records of financial transactions.
Discussing Power of Attorney Agreements With Your Parents
Discussing power of attorney agreements is important to your parents’ well-being, but acknowledging their declining physical or mental health can be difficult. First and foremost, you should focus on the positive. This legal document will lift the burden of making decisions off your parents’ shoulders and give them peace of mind for the future. Here are a few other tips for navigating the conversation:
- Bring up the subject calmly. A matter-of-fact approach often works best, but be respectful and open to your parents’ feelings.
- Explain what a Florida durable power of attorney is and why it is important to take care of it now, as well as the benefits.
- Before the discussion, reach out to family members and figure out who is the ablest and most willing person to take on the fiduciary responsibility.
- Assure your parents that you want to make sure they have a family member designated so that decisions will be made by someone who has their best interests in mind, versus a court-appointed guardian.
- Be patient. Your parents may be resistant to the idea at first. This is entirely understandable. You are asking them to allow access to their private financial and medical information. You may need to leave some information with them to review and bring up the subject again on another day.
Though it is vital that your parents understand why a power of attorney is such a crucial document, this discussion can be jarring if it comes up out of the blue. If the situation is not urgent, you may want to start laying the groundwork well in advance. You could mention a friend who has gone through the power of attorney process with their parents recently or ask if they have thought about how they plan to manage things as they get older.
How to Get a Power of Attorney in Florida for Elderly Parents
Setting up a power of attorney agreement in Florida is a simple process. You will not even need to appear in court as long as your parents are competent enough to sign and understand the document.
- Decide who will act as the “agent.” The agent is the person designated to act on behalf of the “principal,” the person delegating authority to the agent. The agent must be a competent person 18 years of age or older, though they do not need to be related to the principal.
- Download and print power of attorney documents from a reputable source, preferably a State of Florida or local municipality website.
- Fill in the form.
- Identify two adults to act as witnesses.
- Find a notary and have both the agent and principal sign the form in front of them.
- Save the power of attorney forms in a very safe place. You will need to produce your notarized power of attorney form each time you need to act on behalf of one of your parents.
As with all things legal, if your family’s situation is complicated, it is well worth paying for a few hours of an attorney’s time to ensure everything is done well and that your parents feel secure in their decision. The last thing you want is to realize too late that the power of attorney you signed is not valid. You can find legal help through the Academy of Florida Elder Law Attorneys.
Must a Person Be Competent to Sign a Power of Attorney?
Yes. The principal must be able to understand that they are signing a legal document that will allow the agent to act on their behalf in virtually any capacity. As the agent, you will be able to manage all of your parents’ financial, legal and medical affairs. A power of attorney gives the agent the power to sell the principal’s home or make life-altering medical decisions.
This is a key principle that you may want to communicate to your parents: no one is trying to take away their independence. You are helping them maintain their lifestyle and ensuring that someone who loves and supports them will make the best possible decisions for them in the future, if and when it becomes necessary.
When Parents Are Not of Sound Mind
If one or both of your parents are experiencing advanced dementia or another progressive condition that impacts their mental acuity, you will need to get a doctor to confirm whether or not they are able to sign a power of attorney document. In some cases, the doctor may have to testify in court.
In this situation, you will need to establish guardianship through the Florida court system to make decisions on their behalf. It is a good idea to hire an attorney to help you handle this process, as it can become quite complicated.
How much does a power of attorney cost in Florida?
Though a power of attorney can be drafted online and later notarized for less than $100, it is best to consult a lawyer when completing such an important legal document. That being said, the average legal fees range from $250 to $500.
The Sterling Aventura: Supporting Adults and Their Families
At The Sterling Aventura, we know that living with dementia can be stressful for adults and their families. We are here to support everyone involved. Whether your parent is in the early stages of dementia and does not need full-time support or is dealing with the later stages of the disease, we are here for your family.
Our Florida memory care community provides personalized support plans that help every resident maximize their abilities so they can reach their personal goals. As a family member, you are an important part of that. We will take the burden of care off your shoulders so you can focus on spending time with your parents, helping them live the life you know they want.
Learn more about how the Sterling Aventura partners with families to create an environment of engagement, community and collaboration. We would love to talk with you about our commitment to helping our residents live full and meaningful lives. Reach out today for more information.