Review of the Florida Power of Attorney Act and Model Durable POA Form

Review of the Florida Power of Attorney Act and Model Durable POA Form

In this Emerging Issues Analysis, Susan Calistri Boesger, Esq. provides a detailed review of the New Florida Power of Attorney Act, which becomes effective October 1, 2011. Also included is a model durable power of attorney form. Ms. Boesger writes:

      During the Florida 2011 legislative session, Chapter 709 was completely overhauled with the repeal of F.S. § 709.08, and the creation of a new "Florida Power of Attorney Act." Modeled in part after the Uniform Power of Attorney Act, the Florida Power of Attorney Act ("the Act") provides the most comprehensive treatment to date of durable powers of attorney pursuant to statute. The Act purports to govern all powers of attorney, with notable exceptions for "proxy or other delegation to exercise voting rights or management rights," "powers created on a form prescribed by a government or government subdivision," a power "to the extent it is coupled with an interest in the subject of the power," and a power created by a "person other than an individual."

     With regard to formalities of execution, the Act is effective for durable powers of attorney created on or after October 1, 2011; otherwise, the Act applies to all powers of attorney "regardless of the date of creation," but does not invalidate powers of attorney existing before October 1, 2011.

     Durable powers of attorney executed in Florida are now exercisable when executed. So-called "springing powers of attorney", which are conditioned upon the principal's incapacity and which have not become exercisable before October 1, 2011, are "exercisable upon the delivery of an affidavit of a physician who has primary responsibility for the treatment and care of the principal and who is licensed to practice medicine or osteopathic medicine." Generally, powers of attorney that become effective on a future date or upon the occurrence of a future event or contingency (such as the incapacity of the principal) are no longer effective.

     In a modification of prior law, the durable power of attorney terminates when:

"(a) The principal dies;

(b) The principal becomes incapacitated, if the power of attorney is not durable;

(c) The principal is adjudicated totally or partially incapacitated by a court, unless the court determines that certain authority granted by the power of attorney is to be exercisable by the agent;

(d) The principal revokes the power of attorney;

(e) The power of attorney provides that it terminates;

(f) The purpose of the power of attorney is accomplished; or

(g) The agent's authority terminates and the power of attorney does not provide for another agent to act under the power of attorney."

     The agent's authority, however, continues until the agent dies, becomes incapacitated, resigns or is removed by the court; the agent is the principal's spouse, and an action is filed for dissolution, annulment or legal separation; or the power of attorney terminates. In addition, as discussed below, the power of attorney is suspended upon the filing of a petition to determine incapacity, and generally remains suspended until there is an adjudication.

(footnotes and citations omitted)

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