The durable power of attorney (DPOA) is a document that allows you, the principal, to name a trusted person or persons (called the agent or attorney-in-fact) to handle your financial affairs. Every adult needs a DPOA. It is an essential document that can prevent you from becoming the subject of a guardianship if you are ever unable to manage your own financial affairs.
The durable power of attorney is effective only while the principal is alive. Once the principal passes on, the agent no longer has the authority to handle the decedent’s finances.
In Florida, the durable power of attorney is immediate, not springing. Thus, you need not be incapacitated for your agent to act on your behalf. He/she has the authority as soon as you sign the document. (A springing power, activated only when the principal is incapacitated, is no longer valid in Florida unless it was executed before October 1, 2011.)
You can give your agent a variety of powers: to make investments, pay bills, handle your bank accounts, manage real estate, etc. You can give your agent powers as broad or as limited as you desire.
Agent’s Responsibilities
There is an iconic line from comic book character Peter Parker, aka Spiderman: With great power comes great responsibility. That applies to your agent under your DPOA as much as it does to superheroes! Florida law considers an agent under a DPOA to be a fiduciary. In other words, an agent must act only in the best interests of the principal. Florida statute 709.2114 details the agent’s fiduciary responsibilities.
Most agents perform their duties with diligence and integrity. But human nature being what it is, not every agent abides by the rules. The Escalating Issue of Elder Financial Exploitation, a 6/11/2025 article from The Association of Certified Anti-Money Laundering Specialists, notes: Misuse of POA often includes withdrawals, asset transfers or alterations to wills and trusts without the elder’s informed consent. Worse yet, if the elder no longer has capacity, the person with the POA is using their assets for personal gain with apparent legal authority. This type of financial abuse can be particularly challenging to detect, as they are often masked under the guise of “helping” the elder manage their finances.
There is no shortage of examples of bad apples who abuse their power as agent, stealing from the very person they are supposed to protect. Sadly, those bad apples often turn out to be family members, the very people we should be able to trust. Our office regularly receives calls from people concerned that their sibling, appointed agent by their parent, is ripping off the parent. Family members are the perpetrators in 48% of reported cases of financial elder abuse, according to the National Center on Elder Abuse.
How To Choose An Agent
We do not want to make you suspicious of your family members or any other person you trust – but let’s face it, creating a durable power of attorney basically gives someone the keys to the castle. You must be extaordinarily careful about whom you entrust with the keys, and what powers you give that person. Knowing you have an agent to step into your shoes to manage your finances can give you great peace of mind. But you do not want to have a scintilla of doubt about your choice. Giving the authority to the wrong person can be disastrous.
Here are some issues that merit your consideration when deciding on an agent for your durable power of attorney:
- First and foremost, you must have implicit trust in the person. Honesty is the most important consideration.
- Does the person you are considering wish to serve in this capacity? Your agent should not be surprised when he/she is called on to act on your behalf. The person must also have the time necessary to do the job.
- Most married people name their spouse as primary agent. If you have no spouse or choose not to name your spouse and you have adult children, consider naming one or more children as your agent. This can sometimes be a delicate matter: You should not feel obligated to name a child you don’t believe is up to the job, or one in whom you do not have unquestioned confidence. If you are inclined to name two children as co-agents, think about whether they are likely to work together amicably as co-decision makers. You also have to decide if you will allow each to act alone, or if they must agree on actions taken. Instead of naming children co-agents, you may decide to make one the primary agent, and the second one a backup.
- Financial competence: Your agent doesn’t have to be a financial wizard, but he/she must be sufficiently competent to handle your finances and all the associated tasks. Your agent should be wise enough to know what he/she doesn’t know and recognize when it is time to call in a professional. For example, there may be tax consequences to certain actions when your agent should seek advice from an accountant.
- You do not need to name an individual as your agent. You may name an institution, or a trusted professional such as a CPA or an attorney. You may make that person co-agent along with a family member. However, be aware that most financial institutions, even trust companies, usually refuse to serve as agent under a durable power of ttorney.
- Your agent should be someone who can remain calm under pressure. He/she may find themselves having to make some highly consequential decisions on your behalf. For example, a house the principal has owned for many years may have to be sold. Assets may have to be reallocated. Other family members may disagree with the agent’s decisions.
- Geographic proximity can be a plus if your agent lives nearby, but it is not strictly necessary. With so many financial transactions done via the internet, this is usually a non-issue.
- Last, discuss all these issues with your estate planning attorney. Do not rely on online power of attorney forms. A form downloaded from the internet may turn out to be technically correct, but it cannot substitute for an in-depth discussion with an experienced estate planning attorney about choosing an agent. You and your attorney will address the pros and cons of naming certain candidates; how choosing one child over another may affect their personal relationship; which powers you want to give your agent and which you don’t. For example, permitting your agent to make gifts is critical if you think you may apply for Medicaid long-term care benefits in the future. You and your attorney will also figure out whether gift-giving should be restricted. These are important, nuanced issues to think through and cannot be explored just by using online forms.
Consult the attorneys of The Karp Law Firm for guidance on your durable power of attorney and all your estate planning goals. Reach us at 561-625-1100.
