by E. Christopher Caravette

What is a “Power of Attorney” in the first place?

A Power of Attorney is a legal document that gives another individual the authority to act on your behalf when you do not or cannot act. You are the “principal” and the person you appoint is the “agent”.

There are generally two types of Powers of Attorney:

• The financial Power of Attorney (in Illinois, called the “Power of Attorney for Property”), for financial and property matters; and,
• The health care Power of Attorney (in Florida, called the “Health Care Surrogate”), for health care decisions.

Florida

Effective October 1, 2011, Florida’s Power of Attorney law changed drastically.

With respect to a Power of Attorney dealing with financial and property issues, the new law expands on the old law as a result of careful consideration by the Florida legislature and also as a result of experience over time with the provisions of the old law.  Some of the changes in the new law are:

• Co-agents can exercise authority independently, unless the Power of Attorney provides otherwise.
• Copies in lieu of original documents are acceptable.

One of the key purposes of the Florida Power of Attorney Act is to clarify the agent’s authority as it might affect the principal’s estate plan.  The principal must specifically acknowledge in the document if:

• The agent has authority to make changes to the principal’s estate plan.
• The agent has authority to change the rights of survivorship and beneficiary designations.
• The agent has authority to waive rights under annuities and retirement plans.
• The agent has authority to make gifts.

These are called the “superpowers”.  This list is by no means exhaustive, but instead illustrates some of the clarifications which the legislature intended to confer with the new law.  The purpose of these changes is to protect the principal and to clarify what previously was not in the statute.

How does this change in the law affect you?  Well, if you executed a Power of Attorney previous to the change, your Power of Attorney is still effective.  However, because of the change in Florida law, it is advisable to execute new documents to make sure your Power conforms and expresses your unique desires.

Illinois

Effective July 1, 2011, Illinois’ Power of Attorney law changed. The legislature’s goals were to provide more protection to the often-vulnerable principal from financial or physical abuse, and to make the forms more user-friendly.

How has the law changed?

With respect to an Illinois Power of Attorney for Health Care:

• It incorporates into the new statutory Power of Attorney for Health Care form the latest changes in light of HIPAA and the new Disposition of Re­mains Act.
•  It deletes use of the outdated medical term “irreversible coma” and replaces it with more medically accepted definitions used in the Health Care Surrogate Act.

With respect to an Illinois Power of Attorney for Property (financial decisions):

• It elevates the agent’s standard of care, requires more oversight of the agent’s actions, and expands the remedies against an agent who abuses his or her fiduciary responsibilities.
• It provides a notice to an agent under the Power of Attorney for Property that describes his or her responsibilities.
• It provides default provisions for co-agents in a non-statutory Power of Attorney for Property.
• It limits who may act as a witness to the execution of a Power of Attorney to avoid conflicts of interest.

If you executed a Power of Attorney in Illinois previous to this change, your Power of Attorney is still effective.  However, because of the change in Illinois law, it would be prudent to consult with us to make sure any Power still reflects your unique needs and desires.

Our firm has been assisting our clients with their estate planning needs for more than twenty-five years.  Please call us to discuss how this change in both Florida and Illinois law might affect your situation.

(Note: The information in this article is intended to be general in nature. Plan to discuss your particular circumstances with an attorney for how this might apply to you.)