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What is a Durable Power of Attorney in Florida?

**Durable Power of Attorney in Florida

Durable power of attorney is recognized and regulated in Florida pursuant to s. 709.08, F.S. The statutory requirements include that the durable of attorney must:

  1. Be in writing;

  2. Be executed with the same formalities required by Florida law; and,

  3. Contain the words, "This durable power of attorney is not affected by subsequent incapacity of the principal except as provided in 709.08, Florida Statutes," or similar words.

The durable power of attorney is exercisable at the date of execution unless the power of attorney is conditioned on the principal's lack of capacity to manage property.

Pursuant to s. 709.08(2), F.S., a natural person, 18 years of age or older and of sound mind may serve as an agent. A financial institution with trust powers, having a place of business in this state and authorized to conduct trust business in the state may also serve as an agent. A not-for profit corporation may also serve as an agent.

The agent may exercise the authority granted pursuant to the power of attorney until:

  1. The principal dies;

  2. The principal revokes the power of attorney; or,

  3. A court determines that the principal is totally or partially incapacitated, unless the court determines that certain authority granted by the power of attorney is to remain exercisable by the agent.

If a person or entity initiates proceedings in any court to determine the principal's capacity, the power of attorney is suspended pending the outcome of the proceedings.

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