Florida Power of Attorney

© William D. Slicker, 2012

            As of October 1, 2011, powers of attorney in Florida were modified by Florida’s Power of Attorney Act which was based on the Uniform Power of Attorney Act. The following is a partial list of some of the major changes:

            (1) Power of attorney must be signed by the principal in front two witnesses and a notary public,

            (2) A power of attorney is terminated when:

                 (a) a dissolution of marriage or an annulment action is filed with respect to the marriage between the principal and agent,

                        (b) the principal dies,

                        (c) the principal becomes incapacitated if the power of attorney is not durable,

                        (d)      the principal is adjudicated incapacitated by a court,

                        (e)       the principal revokes the power of attorney,

                        (f)       the purpose of the power of attorney is accomplished,

                        (g)       the power of attorney provides that it ends,

                        (h)      the agent dies, resigns, becomes incapacitated, or is removed by court.

            (3) Springing powers of attorney (a power of attorney conditioned on a future event) are not given effect except in cases of a military power of attorney,

            (4) A third party must accept or reject a power of attorney within a reasonable amount of time (four days excluding Saturday, Sundays, and holidays are presumed to be reasonable). A third person may require an affidavit from the agent stating that the power of attorney is still valid. If the third party improperly refuses to accept a power of attorney, the agent may enforce it through the court and recover reasonable attorney fees and court costs,

            (5) In order to be paid as an agent, the agent must be one of the following:

                        (a) a financial institution that has trust powers and a place of business in Florida,

                        (b) a spouse or heir of the principal,

                        (c) an attorney licensed in Florida,

                        (d) a certified public accountant licensed in Florida,

                        (e) a person who is a resident of Florida who has never been an agent for more than three principals.

            (6) Certain powers contained in the power of attorney must be separately acknowledged by separately initialing next to each provision including:

                         (a) the power to create a living trust,

                        (b) the power to amend, revoke, or terminate a trust created by or for the benefit of the principal,

                        (c) make a gift in excess of the annual federal gift tax exlusion,

                        (d) create or change rights to survivorship,

                        (e) create or change a beneficiary designation,

                        (f) waive the principal’s rights to be a beneficiary of an annuity or retirement plan,

                        (g) the power to disclaim property or powers of appointment

            (7) The agent must act in accordance with the following duties that cannot be waived or eliminated:

                        (a) act within the scope of the authority granted in the power of attorney,

                        (b) may not act contrary to the principal’s reasonable expectations,

                        (c) act in good faith,

                        (d) may not act contrary to the principal’s best interest,

                        (e) attempt to preserve the principal’s estate plan,

                        (f) act personally except for the authority to delegate investment functions

                        (g) keep adequate records

                        (h) create an inventory of the principal’s safe deposit box if authorized access to it.

            (8) The agent must act with the following duties unless they are modified or eliminated by the power of attorney,

                        (a) act loyally for the sole benefit of the principal,

                        (b) act so as to not create a conflict of interest,

                        (c) act with care, competence, and diligence ordinarily exercised by agents in similar circumstances,

                        (d) cooperate with health care providers authorized to make health care decisions for the principle.

            (9)       An agent who violates the Florida Power of Attorney Act is liable to the principal or the principal’s successors in interest for restoring the value to the principal’s property to what it would have been if the violation had not occurred plus attorney fees and court costs.

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