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October 4, 2011

Important Provisions Of New Florida Power Of Attorney Statute Are Now In Effect

As written in a previous blog post, several important provisions of the new Florida power of attorney statute became effective as of October 1, 2011.  These provisions include:

No more “springing” powers.  As of now, all durable powers of attorney must be effective immediately.  However, those which were executed before October 1 shall remain in effect.  We posted a previous blog outlining some of the reasons for this change.

Specific identification and consent for “superpowers.”  Certain broad powers granted to an agent, so-called “superpowers,” now require special procedures.  To grant an agent the ability to exercise a superpower, that power must be specifically mentioned in the document, and that section of the document must be initialed by the principal.  Examples of superpowers include the ability to make gifts from the principal’s funds or the ability to create, alter, or amend a revocable living trust on behalf of the principal.

Financial institutions will now accept copies of the power of attorney document.  A photocopy or electronic copy or the power of attorney will now be honored by financial institutions.  This increases the convenience for the principal and agent with regard to administration of the power, but also carries added risk with regard to revocation.  For example, even if the principal destroys the original document, the agent may present a copy to a financial institution and continue to exercise power without the consent of the principal.  Thus, when seeking to revoke a power of attorney, it is usually advisable that the principal to take additional steps beyond destroying the original document, such as recording the revocation with the applicable clerk of the court; sending copies of the revocation to  all financial institutions; and notifying all agents named in the revoked power of the revocation.  The new statute also provides a procedure for agents who wish to renounce their power.  Unless the power of attorney provides a different method for an agent’s resignation, an agent may resign by giving notice to the principal, to an appointed guardian if the principal is incapacitated, and to any co-agent or successor agent.  It may also be advisable to give notice to anyone who relied on the agent’s power in the past and to record the resignation with the clerk to protect against future liability.

New execution requirements.  The new statute increases the level of formality required to execute a Florida power of attorney to the same level as that of a Florida will.  Generally, this means that the power of attorney must be signed by the principal and by two subscribing witnesses and be acknowledged by the principal before a notary public.

A power of attorney is a powerful legal instrument that should be built around your specific goals and circumstances.  If you are in need of a power of attorney, it is best to contact a knowledgeable Florida estate planning attorney who is prepared to comply with the new law.  You should not attempt to adapt an off-the-shelf or off-the-internet form by yourself with the hope of achieving compliance, since mistakes can be costly.

If you need assistance with your estate plan, contact an Attorney in Jacksonville who can help you today.