The Florida Legislature has recently made some changes to the Power of Attorney (POA) laws in Florida. Though some changes are merely semantic, overall they can affect your current POA and the way the Court views it. Below are some, but not all, of the important changes in POA laws. If you already have a POA, or are planning on updating yours, it is best to speak to your legal advisor for advice.
» The execution requirements of a power of attorney are the same as that of a deed.
» To make a power durable, the same language as currently required under Section 709.08, Florida Statutes is still required.
» Power still ceases at death, and while older ‘springboard’ durable clauses will be grandfathered in, no new ones shall be made.
» A photocopy or electronically transmitted power of attorney should be considered as an original for purposes of delivery and notice of the same.
» No more springing or conditional powers of attorney. All powers of attorney must be self-executing at time of execution. A power of attorney executed prior to Oct. 1 is still supposed to be accepted as valid, including springing powers.
» Due to possible conflicts of defining when the clause has been “sprung” – incapacitation could be contested.
» All powers of attorney are now immediate.
» There is a limitation on agents who may be compensated when performing under a properly executed power of attorney. This provision may cause some concern for professional guardians who act as an agent for more than three people if they want to be compensated for their work.
» To clear up a perceived ambiguity in the current law, the law permits the appointment of multiple agents and successor agents. There is no need to have a power of attorney for each person; one power of attorney may be used for more than one agent; in the event multiple agents are chosen, then either has the authority to act alone unless otherwise provided by the power of attorney.
» Acceptance of an agent under a power of attorney is limited to the specific action taken.
» You can have partial acceptance of an agent under a power of attorney.
» Some POAs are subject to reporting requirements.
» All powers of attorney must be specific. Unless permitted in the context of certain financial transactions, no incorporation by reference or “check the box” or “initial the box” forms should be acceptable under the Law.
» Power of attorney is now more strictly defined.
» The gifting of a principal’s property is restricted unless the power of attorney permits otherwise, as provided in the Law.
» One must provide notice for any financial institutions involved in the estate before POA can be given. Notice to a financial institution or title company is not deemed given until five business days after it is received.