In my third article in this series, I laid out the reasons why picking the right person to serve as your Agent under a Durable Power of Attorney is best made after carefully considering the skill and loyalty of the people available to serve. Just as important in deciding who to appoint, you also must consider the “source” of the Durable Power of Attorney you are going to sign.
I am unafraid to admit the creation and execution of a Durable Power of Attorney does not require an attorney. There are many companies offering self-help estate planning services that allow clients to prepare a Durable Power of Attorney on their own. These companies typically charge less than an attorney charges for the same service, but this comes with a trade-off. Most self-help programs are created and maintained by computer programmers, not lawyers. This means you cannot be certain you are receiving valid legal advice; in fact, most self-help programs state they do not provide legal advice since legal advice can only be provided by an attorney licensed in your state. Even when these self-help programs are overseen by an attorney, there is no assurance the attorney has any actual estate planning experience in your state (estate planning laws differ from state to state). To overcome client skepticism, many self-help programs offer clients the option of being referred to an estate planning attorney in their area. Over the years I have been approached by multiple companies selling self-help programs and requested I take referrals on the fees and conditions they set. I have consistently turned down every such request because the fees are so low I cannot cover my overhead costs (meaning I lose money if I take the referral) and the company wants to impose restrictions on what I can speak to the client about, which violates my duty to speak openly and candidly about each client’s particular estate planning needs.
On the other hand, hiring just any attorney to draft your Durable Power of Attorney is no guarantee of success. According to the Florida Supreme Court (which regulates the Florida Bar), a Florida law licensed attorney is expected to be competent to handle the legal matter they have been hired to handle. If an attorney agrees to take on a criminal case but that attorney has little to no experience in criminal matters, their client could likely end up with a conviction; the client’s only recourse is to then hire another attorney and try to get a new trial based on “incompetent representation”, but that rarely succeeds. Sadly, many attorneys think “estate planning” is typing names into forms they bought from someone else and do not take the time to become competent in estate planning matters.
Clearly it is in your best interest to use an attorney who practices estate planning law on a regular and continuing basis. I spend roughly 70% of my time addressing estate planning issues; even when I am not handling an estate planning matter, I am still practicing law on matters directly linked to estate planning (e.g. probate, guardianship, elder law). The entirety of my legal career has been spent in the estate planning arena, meaning I know the “ins” and “outs” of the laws directly affecting your estate planning needs. This is extremely beneficial when it comes to issues concerning a Durable Power of Attorney. For example, I once spoke to the attorney for a title company who requested the Principal sign a new Durable Power of Attorney since the Principal’s existing Durable Power of Attorney was 4 years old. The other attorney thought their request was reasonable and legal. What this attorney did not know was that under the Florida Power of Attorney Act: (1) the title company was limited to 4 business days after being presented with the Durable Power of Attorney to reject it; (2) a Durable Power of Attorney can only be rejected in writing and must cite the statutorily approved grounds for rejection; (3) the title company could not require the Principal sign another form in substitution of the Durable Power of Attorney; (4) either the Agent or Principal could demand an emergency hearing at which a judge would issue an order requiring the title company accept the Durable Power of Attorney; and (5) if the emergency hearing was successful the title company could be held liable for all attorney fees, court costs and other damages set by the court. Not only did the other attorney admit to not knowing the specifics of the Florida Power of Attorney act, she also admitted to being surprised no other attorney had brought this to her attention before and instead had simply prepared (and likely charged) their clients for a new Durable Power of Attorney. Keep in mind this conversation happened in 2017, almost six year after the Florida Power of Attorney Act went into effect on October 1, 2011. While I appreciated the other attorney’s candor, I was saddened at learning other estate planning attorneys either did not know how the law worked or were simply willing to charge a fee to prepare a new one. I continue to come across these same issue in 2022, nearly 11 years since the Florida Power of Attorney Act took effect.
As we close out this 4-part series on various aspects of how a Durable Power of Attorney is drafted and used, it is clear the linchpin to ensuring your Durable Power of Attorney works as intended is to use an experienced estate planning attorney who values and addresses your particular estate planning needs above all else. If you have questions about your Durable Power of Attorney or need to have one prepared, do not hesitate to contact my office.
John T. Marshall, Esq. and Marshall Law, P.A. can assist you with addressing the issues raised in this article, or any of your Estate Planning, and Estate Administration needs. For more information or to schedule an appointment contact Marshall Law at (352) 432-8859.
Listen to John Marshall’s Podcasts:
YouTube Link: https://www.youtube.com/@marshalllawpa
Apple Podcasts: https://podcasts.apple.com/us/podcast/trust-me-its-complicated/id1813906876
Spotify: https://open.spotify.com/show/0tlTEgvxXqNI5PDLSRGzkg
Amazon Music: https://music.amazon.com/podcasts/998a0a73-baf4-4018-8e6e-edfc32d7f83a/trust-me-it%E2%80%99s-complicated
iHeart: https://www.iheart.com/podcast/1323-trust-me-its-complicated-275132924/
