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Recent Changes In Florida’s Power Of Attorney Law

Effective October 1, 2011 the requirements for a valid power of attorney in Florida changed. These changes have significant impact on estate planning issues and on how powers of attorney can be used. The following changes have been made to Florida statute 709, Florida’s power of attorney statute:

1. An individual can no longer make a “springing” power of attorney. A springing power of attorney is a power of attorney that becomes effective in the event of disability or some future event such as incapacity. There is an exception for certain military powers of attorney that become effective upon active enrollment in the military. Springing powers of attorney have routinely been used in Florida, for examples between husbands and wives. In the event a husband or wife became incapacitated, then the power of attorney would “spring “ into effect to allow the other to act on his or her spouse’s behalf. These kinds of powers of attorney are no longer valid in Florida.

2. If more than one agent is named, then one agent can now act unilaterally, absent explicit written language otherwise. Under the old act, the presumption was that all of the agents who had the power of attorney needed to consent to an action before it could be taken.

3. Banks now can require a written opinion that a power of attorney is valid. The new act gives the bank four business days to review powers of attorney to see if they will accept them. This is troubling for snowbirds or for those just moving to Florida. If you fall into these categories, it is wise to let the Bank review the power of attorney BEFORE any anticipated use.

4. The grantor or giver of a power of attorney must now specifically sign or initial any provision that allows for “superpowers.” Superpowers are those powers that allow the person appointed in the power of attorney to make changes to the grantor’s estate planning documents, i.e. to revoke trust, change beneficiaries on retirement accounts or annuities or life insurance policies, or to waive spousal benefits.

Unless the power of attorney provides otherwise, any power of attorney is entitled to reimbursement for expenses reasonably incurred on behalf of the principal. Only qualified agents, however, are entitled to compensation. Compensation must be reasonable under the circumstances. Qualified agents include: the spouse or heir of the principal, a financial institution with trust powers and a place of business in Florida, an attorney or accountant licensed in Florida, or a natural person who is a Florida resident and has never been an agent for more than three principals at the same time.

The intent of these changes in Florida’s power of attorney act is to make Florida’s act more similar to the Uniform Power of Attorney Act, with certain modifications.

These changes to Florida’s Power of Attorney Act are not retroactive, so Florida powers of attorney drafted before October 1, 2011 are still valid if they comply with the Florida law that existed when they were executed, with certain exceptions.

Out-of-state powers of attorney are still valid if drafted and executed in accordance with the laws of the State where they were signed.

If you have any doubt whether your power of attorney is valid, give it to your bank for immediately review or contact your attorney. Even if it is valid, your life situation may have changed so that a revision to your power of attorney might be prudent.