Many times I have people come into my office having taken the proactive
step of putting a durable power of attorney in place as part of their
incapacity planning. However, having put it in place, they checked it
off their “to do” list never realizing that it has to be updated
on a regular basis.
A durable power of attorney needs to be updated for three reasons.
First, it needs to be updated because your family changes. The person you
felt may be the best choice to speak for you in case of your incapacity
when you put the durable power of attorney in place may become incapacitated
themselves or even pass away.
Second, it needs to be updated because the law changes. For instance, the
Florida durable power of attorney law changed substantially in October
2011. This means that anyone with a Florida durable power of attorney
signed prior to October 2011 really needs to have it reviewed because
it may not work as comprehensively under the new law as it did under the
prior law. When your agent is trying to use the durable power of attorney
on your behalf is not the ideal time to realize that it may not work as
well under the new law.
Third, it needs to be updated because it can’t be amended. Unlike
a will or a trust, you can’t amend a Florida durable power of attorney.
If you want to change it, you have to sign a whole new one. Because it
is a whole new one, there is no way for someone looking at it to know
if it is your current durable power of attorney or an older version that
you have revoked and replaced. Therefore, the shorter the period of time
between when you sign it and when your agent goes to use it on your behalf,
the potentially higher the comfort level of people being presented with
the durable power of attorney by your agent that it is your current durable
power of attorney.
So, just like your car, your incapacity plan needs regular maintenance
in order to enhance the chances that it will work well for you when you
need to rely on it.