By Susan Calistri Boesger J.D. LL.M.
This EIA provides two updated model Florida Durable Power of Attorney forms. One form provides estate planning provision and one does not. The EIA also provides some general information to consider when using the forms.
Considerations In Use Of Model Form
[A] Powers Granted Should Be Specific and Comprehensive
[C] Banking and Investment Authority
[D] Countersigned Copies May Be Requested
Model Form A—Durable Power Of Attorney—Without Estate Planning Powers—Without Designation Of Health Care Surrogate
Model Form B—Durable Power of Attorney—With Estate Planning Powers—Without Designation Of Health Care Surrogate
Considerations In Use Of Model Forms
Model Forms A and B are Durable Powers of Attorney. The purpose is to give comprehensive powers to the attorney-in-fact to act on behalf of the principal. Although both models do not cover every possible act, they do cover a broad range of allowable acts, so that each one may be appropriate, without any changes, in most cases. The Model B Durable Power of Attorney additionally contains the estate planning provisions identified in F.S. §709.2202; thus those provisions should be specifically signed or initialed by the principal at the time of signing.
Both Model Durable Powers of Attorney are suitable for use with (1) both a separate Designation of Health Care Surrogate without living will (life-prolonging procedures) provisions and a separate Living Will without a designation of health care surrogate; or (2) a combined Living Will and Designation of Health Care Surrogate.
The Florida Power of Attorney Act provides that an agent may only exercise authority specifically granted to the agent, as well as any authority reasonably necessary to give effect to the specific grant of authority. It is thus important that the document be as comprehensive as possible and that the types of acts to be authorized are specifically enumerated.
In addition, the statute provides that certain banking and investment transactions are included by reference to the statute, if the statements appearing in F.S. § 709.2208 are included in the form durable power of attorney. These statements should be included to ensure that the acts which they cover are specifically covered by the power of attorney. Note that this provision is applicable only to powers of attorney exercised on or after October 1, 2011.
Finally, the statute requires that certain powers be specifically enumerated, such as gifts in excess of the federal gift tax annual exclusion; creating, amending or revoking a trust; and changing beneficiary designations. Model B includes each of these provisions along with a space for the principal to initial or sign next to each one in. The attorney should delete any provision that unnecessary or undesirable.
Susan Calistri Boesger, J.D., LL.M is the author of Florida Will and Trust Forms Manual.
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