Written by attorney Joseph Stuart Karp

Florida Power of Attorney Law Changes Effective Oct. 1, 2011

Effective Oct. 1, 2011, Florida law changes with respect to the Florida Durable Power of Attorney. The new law brings Florida statutes more in line with the Uniform Power of Attorney Act as drafted by the National Conference of Commissioners on Uniform State Laws.

A Durable Power of Attorney enables you to authorize someone else to manage your financial affairs. The purpose of the new law is to provide Florida residents with additional safeguards against authorized agents who might overstep their powers.

Florida residents with an existing Durable Power of Attorney need not worry or amend their documents. A Durable Power of Attorney drafted before October 1, 2011 will continue to be valid in Florida. However, Florida residents may want to consider updating their documents to benefit from the new law's greater protection from potential financial fraud.

The following changes apply to Durable Powers of Attorney signed on or after Oct. 1, 2011:

  1. Immediate Durable Power of Attorney: All Durable Powers of Attorney drafted on and after Oct. 1, 2011 will be immediate. The agent will have the power to act as soon as the document is signed. Springing Powers of Attorney, empowering an agent to act only upon the incapacity of the principal, will no longer be valid if executed on or after Oct. 1.
  2. Backup Agents: Although Florida residents have routinely included backup agents in their Florida Durable Power of Attorney, there has been no basis in Florida law for doing so. The new law recognizes that backup agents may be included in the Durable Power of Attorney.
  3. Co-Agents: If you name co-agents on a Durable Power of Attorney signed on or after Oct. 1, each of the co-agents will be able to act without the knowledge or consent of the other, unless you specify otherwise.
  4. Specific Powers and Superpowers: It remains necessary for the principal to name the specific powers he/she is giving to the agent. Stating that your agent can do "anything I myself can do" is not sufficient. For example, if you to empower your agent to be able to buy or sell your real property, you must specifically mention that power. What does change under the new law is the way "superpowers" are handled. One example of a superpower is the ability to gift from the principal's funds. If you want to enable your agent to exercise a "superpower," you will now need to physically initial that portion of your Durable Power of Attorney that grants that power.
  5. Photocopies and electronic copies honored: It will not be necessary for an agent to present financial institutions with the original, signed copy of A Durable Power of Attorney if it has been signed on or after Oct. 1. Under the new law, photocopies and electronic copies will be honored. This aspect of the new law provides greater convenience for principal and agent. At the same time, if the principal wishes to revoke the Power of Attorney, just destroying the original is not sufficient. Additional steps to prevent an agent holding a photocopy of a revoked Durable Power of Attorney should include alerting financial institutions of the revocation; recording the revocation with the Clerk of the Court in Public Records; and officially notifying agents of the revocation.

The State of Florida does not have a statutory Durable Power of Attorney Form, as it does not consider it to be a "form" but rather a complex legal instrument. A Durable Power of Attorney should be based on the principal's individual desires and circumstances and drafted and signed only in consultation with a Florida Bar Certified Elder Law Attorney. It is not wise to use fill-in-the-blank generic forms provided by online sites and office supply stores. Given the more rigorous laws that now govern the Florida Durable Power of Attorney, using generic forms presents even greater risk of making a costly mistake.

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