Powers of attorney can be very useful tools in creating a comprehensive estate plan. As this blog has previously touched on, a durable power of attorney can help ensure that someone you trust has authority to act on your behalf if you cannot. Generally speaking, a power of attorney is effective at the time the document granting the power is executed. Prior to a change in Florida law in 2011, however, there was another type of power of attorney that was often used, sometimes called a "springing" power of attorney.
Florida Statute 709.2108 governs the effective date of powers of attorney. In this section, there is a provision stating that a power of attorney is ineffective if it provides for the beginning of the powers granted within it at a date later than that on which it is executed, or contingent upon a future condition. However, there is a "grandfathering" clause in the law, which allows powers of attorney that are specifically meant to become effective when the principal becomes incapacitated. These "springing" powers of attorney are only effective, however, if they were executed before October 1, 2011.
Further, to put one of these types of documents into effect, a specific step must be taken. Basically, a "springing" power of attorney that has not taken effect before October 1, 2011 becomes effective upon the delivery of an affidavit by a licensed doctor that has primary responsibility for the care of the principal. The affidavit must state that the doctor is licensed to practice medicine, that he or she has the primary responsibility of care and treatment of the principal, and that the physician believes the principal lacks the capacity to handle his or her own property interests.
The above is an example of how laws sometimes evolve over time. States often change their statutes to coincide with changes in public policy or the norms and understandings of society. Because it is often considered unfair, however, to those who relied on prior law to make plans, many times such "grandfathering" clauses are included to substantive changes in the law. It is important to remember that these "springing" powers of attorney can no longer be validly executed. If you have questions about Florida powers of attorney, you may want to consider consulting an experienced estate planning attorney.