Gainesville Power of Attorney | Lake City Power of Attorney
FLORIDA’S DURABLE POWER OF ATTORNEY STATUTE WAS RECENTLY RE-WRITTEN. NEW AND MAJOR CHANGES TO THE STATUTE WENT INTO EFFECT ON OCTOBER 1, 2011.
Under the new law, certain powers given by a Principal to the Attorney-In-Fact/Agent (such as estate planning powers) must be initialed next to the individual powers given to the Agent in the Durable Power of Attorney document.
If you have previously executed a Durable Power of Attorney prior to October 1, 2011, it is recommended that an attorney review your document to determine whether all of the provisions contained in the document, are still valid and effective under the new law.
DURABLE POWER OF ATTORNEY
A Durable Power of Attorney is a written document which allows a person (the “principal”) to designate another individual (the “attorney-in-fact” a/k/a Agent) to transact his or her financial business. Unless otherwise stated, the Durable Power of Attorney applies to any real or personal property interest owned by the principal. This includes the attorney in fact’s right to convey or mortgage the principal’s homestead. A Durable Power of Attorney can be broad or narrow and should be customized by an Elder Law attorney in order to achieve the principal’s goals.
Individuals and business institutions, such as banks, that are presented with a valid Durable Power of Attorney must honor the agent’s apparent authority to transact business for the principal or, under the new statute, must reject the Power of Attorney form within a reasonable time, if grounds exist for refusal. A third party who unreasonably rejects a Power of Attorney is subject to court order mandating its acceptance and is liable for damages including attorney’s fees and costs. Any individual or business institution that, in good faith, relies on the agent’s apparent authority in the Durable Power of Attorney is not liable to the principal for transacting business with the attorney in fact.
We recommend that the Durable Power of Attorney be in writing and be signed by the principal in the presence of two adult witnesses and a notary public. The attorney-in-fact named in a Durable Power of Attorney may transact business for the principal as soon as the document is signed and until the principal dies, revokes the power, or is determined by a court to be incapacitated. To ensure that the Durable Power of Attorney remains effective even when the principal becomes incapacitated, a Durable Power of Attorney must contain the words, “This Durable Power of Attorney is not affected by subsequent incapacity or disability, either mental or physical, of the principal except as provided by statute”; or similar words that show the principal’s intent that the authority conferred is exercisable despite the principal’s subsequent incapacity or disability.
As mentioned above, a Durable Power of Attorney is effective as of the date it is signed. Under the new statute, Florida law does not permit the use of a Durable Power of Attorney conditioned on the principal subsequently becoming ill or incapacitated springing powers. Before signing a Durable Power of Attorney, it is recommended that you consult with an Elder Law attorney to customize the powers given to the attorney-in-fact and to address various other issues associated with a Durable Power of Attorney.
SPRINGING POWER OF ATTORNEY
Springing Durable Powers of Attorney were previously an available option to our clients. However, under Florida’s new Durable Power of Attorney Statute, effective October 1, 2011, Springing Durable Powers of Attorney are no longer effective under Florida law.
The old “Springing Durable Power of Attorney” used to give a person an alternative to granting his or her attorney-in-fact the immediate right to take control of the principal’s property. In this case, the document authorizing the attorney-in-fact to act was conditioned upon an affidavit from a physician swearing that the principal was no longer capable of managing his financial affairs. A person using this type of Durable Power of Attorney was often faced with delays that arose in obtaining the treating physician’s affidavit under these circumstances.
However, this type of Durable Power of Attorney is no longer a valid option and is not recommended after October 1, 2011. If you previously executed a Springing Durable Power of Attorney prior to October 1, 2011, you should have this document reviewed by an attorney to draft a new document.