THE POWERS AND LIMITATIONS OF POWERS OF ATTORNEY, AND CHANGES TO FLORIDA STATUTE 709
AS OF OCTOBER 1, 2011: PART I.
Nearly all men can stand adversity, but if you want to test a man’s character, give him power. Abraham Lincoln
Recent legislation has confirmed Florida’s Power of Attorney Statute 709 to the Uniform Power of Attorney Act, with certain modifications, in an attempt to achieve greater consistency among the 50 states and Washington D.C. On May 4, 2011, the Florida legislature passed Senate Bill 670, on June 21, 2011, the Florida Power of Attorney Act was signed into law by Governor Scott, and it became effective October 1, 2011. Florida Statute 709 applies to powers created by individuals (with four exceptions) and does not apply to powers created by entities or corporations. Florida Statute 709 applies to all Powers of Attorney used in Florida and governed by Florida law. Florida Statute 709.01-709.11 has now become Florida Statute 709.2101-709.2402.
When a Powers of Attorney was executed before October 1, 2011, which conferred rights to an agent (or attorney-in-fact), those rights acquired under the Power of Attorney predating October 1, 2011, will continue to apply, as follows: Florida Statute 709.2402(3) states, “[w]ith respect to a power of attorney existing on October 1, 2011, this part does not invalidate such power of attorney and it shall remain in effect. If a right was acquired under any other law before October 1, 2011, that law continues to apply to the right even if it has been repealed or superseded.”
Under Florida Statue 709.2104, in order for a Power of Attorney to be durable, it must contain the words: “This durable power of attorney is not terminated by subsequent incapacity of the principal except as provided in chapter 709, Florida Statutes,” or similar language specifically indicating the principal’s intent that the authority conferred is exercisable notwithstanding the principal’s subsequent incapacity.
For a Power of Attorney to be valid if executed after October 1, 2011, the agent (or attorney-in-fact) named in the Power of Attorney must be 18 years of age or older or a financial institution that has trust powers has a place of business in this state and is authorized to conduct trust business in this state. Not just any financial institution will be permitted to take power as an agent after October 1, 2011. The financial institution must meet the criteria as set forth in Florida Statute 709.2109(1).
What happens if the Power of Attorney was executed prior to October 1, 2011, but the agent named was a financial institution that does not meet the specific criteria as set forth in Florida Statute 709.2109(1)? The Power of Attorney is valid if its execution complied with the law of Florida at the time of its execution pursuant to Florida Statute 709.2106(2).
Also, for the Power of Attorney to be valid if executed after October 1, 2011, it must be signed by the principal and also by two subscribing witnesses before a notary public pursuant to Florida Statute 709.2105(2).
What happens if the Power of Attorney was executed in another state which does not comply with the execution requirements in Florida? Pursuant to Florida Statute 709.2106(3), a Power of Attorney executed in another state which does not comply with the execution requirements in Florida will be valid in Florida as long as it complied with the execution requirements of the state of execution at the time it was executed.
The new law now states that a photocopy of a Power of Attorney or an electronically transmitted copy of an original Power of Attorney has the same effect as the original pursuant to Florida Statute 709.2106(5). This change in the law may create problems as an unscrupulous person may attempt to alter the Power of Attorney, then photocopy or electronically transmit the altered version in an attempt to utilize the powers conferred in the altered version of the Power of Attorney. If you believe a person named as the agent or attorney in fact of a Power of Attorney is breaching their fiduciary duty, self-dealing, squandering assets, not investing the principal’s assets prudently, or utilizing an altered Power of Attorney, it is imperative that you promptly contact a skilled and competent attorney so that the appropriate action can be taken, including but not limited to the commencement of litigation against the person abusing the power of attorney.