Have you ever had the need for a Florida Power of Attorney? If you have lately then know that effective October 1, 2011, new requirements provided by the Florida Power of Attorney Act must be satisfied. Changes to existing law are not retroactive so if you have a Power of Attorney from before October 1, 2011, it is still valid. Still, it’s wise to have new documents prepared and executed at this time.
A Power of Attorney is a document which provides a grant of authority to an agent to act on behalf of the principal in place of the principal. The principal executes a Power of Attorney to grant such authority to his agent or “attorney in fact.”
Florida’s revisions to the power of attorney law were designed to more closely track the Uniform Power of Attorney Act already law in many states. Florida’s new Power of Attorney Act modifies and clarifies the agent’s duties including:
+ No Delegation of Duties: the agent must perform all duties and may not delegate authority (except in the case of certain investment functions);
+ Record Keeping: the agent must keep records of all receipts, disbursements and transactions;
+ No Contrary Actions: the agent may not act contrary to the principal’s interests and reasonable expectations;
+ Specific Authority: the agent may only perform specific acts as provided in the Power of Attorney and blanket authority such as “to do everything the grantor could do,” is now invalid.
Changes in Florida Power of Attorney Law
The Florida Power of Attorney Act provides many new requirements including:
Every Power of Attorney must be formally executed – signed by the principal and by two subscribing witnesses and acknowledged by the principal before a notary public.
There can be no springing power of attorney under the new law. A springing POA is a power of attorney that becomes effective upon some future event or occurrence (with exceptions for military POAs);
Every Florida Power of Attorney that is a durable power of attorney (remains in effect notwithstanding the principal’s subsequent incapacity) must contain such words as “This durable power of attorney is not terminated by subsequent incapacity of the principal except as provided in chapter 709, Florida Statutes”;
A Grantor’s initials are required for provisions that allow for:
- gifting, changing the beneficiaries of a retirement account,
- changing any beneficiary of an annuity,
- changing the ownership or beneficiary of a life insurance policy,
- amending, modifying, creating, revoking or terminating a trust,
- waiving the principal’s right to be a beneficiary of a joint and survivor annuity, including survivor benefits under a retirement plan, or
- disclaiming property and powers of appointment;
Multiple agents may each act unilaterally, absent explicit direction otherwise. Previously the presumption was that if multiple agents were named they had to act together;
Third parties must accept a copy of the power of attorney (not require an original), though they may insist on an affidavit swearing the POA is still in effect; and
By executing a new power of attorney, there is no revocation of a previous power of attorney unless the new POA so provides.
Specified Attorney in Fact Powers Prohibited
Agents are not permitted to perform the following acts under a power of attorney:
· any duties under a contract that require personal services of the principal;
· making affidavits based on the personal knowledge of the principal;
· voting in any public election on behalf of the principal;
· executing or revoking any will or codicil for the principal; or
· exercising any powers or authority granted to the principal as trustee or as court-appointed fiduciary.
Most people should include a Durable Power of Attorney in even the most basic Estate Plan. Since it gives your chosen agent authority to act for you if you become incapacitated, it’s a valuable tool for any estate plan.
It may be time to revisit your existing Power of Attorney. Even though older documents will still be recognized, unintended results may occur or difficulties may arise in using a Power of Attorney that does not comply with current Florida law.