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The actual Florida Power of Attorney Act (Florida Statutes 709.2101-2118) is listed below verbatim

Whether you are looking for assistance with estate planning or need help with will and trust contests, probate, trust administration or litigation or guardianship administration and litigation contact Matthew A. Linde, P.A. today.  The firm regularly provides legal serves in Fort Myers, North Fort Myers, Cape Coral, Bonita Springs, Punta Gorda, Port Charlotte, and Naples.

[Editor's Note: Listed below are the actual statutes that make up the Florida Power of Attorney Act (some clients enjoy reading the statute themselves).  In subsequent posts, I will describe the good, the bad and the ugly parts of this new statute.  One thing is clear, knowledge is power, and failing to understand how these statutes can effect your estate plan may create litigation within your family.  For additional information, contact Matthew A. Linde, P.A. today!]


§ 709.2101.  Short title [Effective October 1. 2011]
   This part may be cited as the "Florida Power of Attorney Act."


§ 709.2102.  Definitions [Effective October 1. 2011]

   As used in this part, the term:
   (1) "Agent" means a person granted authority to act for a principal under a power of attorney, whether denominated an agent, attorney in fact, or otherwise. The term includes an original agent, co-agent, and successor agent.
   (2) "Durable" means, with respect to a power of attorney, not terminated by the principal's incapacity.
   (3) "Electronic" means technology having electrical, digital, magnetic, wireless, optical, electromagnetic, or similar capabilities.
   (4) "Financial institution" has the same meaning as in s. 655.005.
   (5) "Incapacity" means the inability of an individual to take those actions necessary to obtain, administer, and dispose of real and personal property, intangible property, business property, benefits, and income.
   (6) "Knowledge" means a person has actual knowledge of the fact, has received a notice or notification of the fact, or has reason to know the fact from all other facts and circumstances known to the person at the time in question. An organization that conducts activities through employees has notice or knowledge of a fact involving a power of attorney only from the time information was received by an employee having responsibility to act on matters involving the power of attorney, or would have had if brought to the employee's attention if the organization had exercised reasonable diligence. An organization exercises reasonable diligence if the organization maintains reasonable routines for communicating significant information to the employee having responsibility to act on matters involving the power of attorney and there is reasonable compliance with the routines. Reasonable diligence does not require an employee to communicate information unless the communication is part of the individual's regular duties or the individual knows that a matter involving the power of attorney would be materially affected by the information.
   (7) "Power of attorney" means a writing that grants authority to an agent to act in the place of the principal, whether or not the term is used in that writing.
   (8) "Presently exercisable general power of appointment" means, with respect to property or a property interest subject to a power of appointment, power exercisable at the time in question to vest absolute ownership in the principal individually, the principal's estate, the principal's creditors, or the creditors of the principal's estate. The term includes a power of appointment not exercisable until the occurrence of a specified event, the satisfaction of an ascertainable standard, or the passage of a specified period only after the occurrence of the specified event, the satisfaction of the ascertainable standard, or the passage of the specified period. The term does not include a power exercisable in a fiduciary capacity or only by will.
   (9) "Principal" means an individual who grants authority to an agent in a power of attorney.
   (10) "Property" means anything that may be the subject of ownership, whether real or personal, legal or equitable, or any interest or right therein.
   (11) "Record" means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.
   (12) "Sign" means having present intent to authenticate or adopt a record to:
      (a) Execute or adopt a tangible symbol; or
      (b) Attach to, or logically associate with the record an electronic sound, symbol, or process.
   (13) "Third person" means any person other than the principal, or the agent in the agent's capacity as agent.


§ 709.2103.  Applicability [Effective October 1, 2011]
   This part applies to all powers of attorney except:
   (1) A proxy or other delegation to exercise voting rights or management rights with respect to an entity;
   (2) A power created on a form prescribed by a government or governmental subdivision, agency, or instrumentality for a governmental purpose;
   (3) A power to the extent it is coupled with an interest in the subject of the power, including a power given to or for the benefit of a creditor in connection with a credit transaction; and
   (4) A power created by a person other than an individual.


§ 709.2104.  Durable power of attorney [Effective October 1, 2011]
   Except as otherwise provided under this part, a power of attorney is durable if it contains 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 words that show the principal's intent that the authority conferred is exercisable notwithstanding the principal's subsequent incapacity.


§ 709.2105.  Qualifications of agent; execution of power of attorney [Effective October 1, 2011]
   (1) The agent must be a natural person who is 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.
(2) A power of attorney must be signed by the principal and by two subscribing witnesses and be acknowledged by the principal before a notary public or as otherwise provided in s. 695.03.


§ 709.2106.  Validity of power of attorney [Effective October 1, 2011]
   (1) A power of attorney executed on or after October 1, 2011, is valid if its execution complies with s. 709.2105.
(2) A power of attorney executed before October 1, 2011, is valid if its execution complied with the law of this state at the time of execution.
(3) A power of attorney executed in another state which does not comply with the execution requirements of this part is valid in this state if, when the power of attorney was executed, the power of attorney and its execution complied with the law of the state of execution. A third person who is requested to accept a power of attorney that is valid in this state solely because of this subsection may in good faith request, and rely upon, without further investigation, an opinion of counsel as to any matter of law concerning the power of attorney, including the due execution and validity of the power of attorney. An opinion of counsel requested under this subsection must be provided at the principal's expense. A third person may accept a power of attorney that is valid in this state solely because of this subsection if the agent does not provide the requested opinion of counsel, and in such case, a third person has no liability for refusing to accept the power of attorney. This subsection does not affect any other rights of a third person who is requested to accept the power of attorney under this part, or any other provisions of applicable law.
(4) A military power of attorney is valid if it is executed in accordance with 10 U.S.C. s. 1044b, as amended. A deployment contingent power of attorney may be signed in advance, is effective upon the deployment of the principal, and shall be afforded full force and effect by the courts of this state.
(5) Except as otherwise provided in the power of attorney, a photocopy or electronically transmitted copy of an original power of attorney has the same effect as the original.


§ 709.2107.  Meaning and effectiveness of power of attorney [Effective October 1, 2011]
   The meaning and effectiveness of a power of attorney is governed by this part if the power of attorney:
   (1) Is used in this state; or
   (2) States that it is to be governed by the laws of this state
§ 709.2108.  When power of attorney is effective [Effective October 1, 2011]
   (1) Except as provided in this section, a power of attorney is exercisable when executed.
(2) If a power of attorney executed before October 1, 2011, is conditioned on the principal's lack of capacity and the power of attorney has not become exercisable before that date, the power of attorney is exercisable upon the delivery of the 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 pursuant to chapter 458 or chapter 459 as of the date of the affidavit. The affidavit executed by the physician must state that the physician is licensed to practice medicine or osteopathic medicine pursuant to chapter 458 or chapter 459, that the physician is the primary physician who has responsibility for the treatment and care of the principal, and that the physician believes that the principal lacks the capacity to manage property.
(3) Except as provided in subsection (2) and s. 709.2106(4), a power of attorney is ineffective if the power of attorney provides that it is to become effective at a future date or upon the occurrence of a future event or contingency.


§ 709.2109.  Termination or suspension of power of attorney or agent's authority [Effective October 1, 2011]
   (1) A 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.
(2) An agent's authority is exercisable until the authority terminates. An agent's authority terminates when:
   (a) The agent dies, becomes incapacitated, resigns, or is removed by a court;
   (b) An action is filed for the dissolution or annulment of the agent's marriage to the principal or for their legal separation, unless the power of attorney otherwise provides; or
   (c) The power of attorney terminates.
(3) If any person initiates judicial proceedings to determine the principal's incapacity or for the appointment of a guardian advocate, the authority granted under the power of attorney is suspended until the petition is dismissed or withdrawn or the court enters an order authorizing the agent to exercise one or more powers granted under the power of attorney.
   (a) If an emergency arises after initiation of proceedings to determine incapacity and before adjudication regarding the principal's capacity, the agent may petition the court in which the proceeding is pending for authorization to exercise a power granted under the power of attorney. The petition must set forth the nature of the emergency, the property or matter involved, and the power to be exercised by the agent.
   (b) Notwithstanding the provisions of this section, unless otherwise ordered by the court, a proceeding to determine incapacity does not affect the authority of the agent to make health care decisions for the principal, including, but not limited to, those provided in chapter 765. If the principal has executed a health care advance directive designating a health care surrogate, the terms of the directive control if the directive and the power of attorney are in conflict unless the power of attorney is later executed and expressly states otherwise.
(4) Termination or suspension of an agent's authority or of a power of attorney is not effective as to an agent who, without knowledge of the termination or suspension, acts in good faith under the power of attorney. An act so performed, unless otherwise invalid or unenforceable, binds the principal and the principal's successors in interest.


§ 709.2110.  Revocation of power of attorney [Effective October 1, 2011]
   (1) A principal may revoke a power of attorney by expressing the revocation in a subsequently executed power of attorney or other writing signed by the principal. The principal may give notice of the revocation to an agent who has accepted authority under the revoked power of attorney.
(2) Except as provided in subsection (1), the execution of a power of attorney does not revoke a power of attorney previously executed by the principal.


§ 709.2111.  Co-agents and successor agents [Effective October 1, 2011]
   (1) A principal may designate two or more persons to act as co-agents. Unless the power of attorney otherwise provides, each co-agent may exercise its authority independently.
(2) A principal may designate one or more successor agents to act if an agent resigns, dies, becomes incapacitated, is not qualified to serve, or declines to serve. Unless the power of attorney otherwise provides, a successor agent:
   (a) Has the same authority as that granted to the original agent; and
   (b) May not act until the predecessor agents have resigned, have died, have become incapacitated, are no longer qualified to serve, or have declined to serve.
(3) Except as otherwise provided in the power of attorney and subsection (4), an agent who does not participate in or conceal a breach of fiduciary duty committed by another agent, including a predecessor agent, is not liable for the actions or omissions of the other agent.
(4) An agent who has actual knowledge of a breach or imminent breach of fiduciary duty by another agent, including a predecessor agent, must take any action reasonably appropriate in the circumstances to safeguard the principal's best interests. If the agent in good faith believes that the principal is not incapacitated, giving notice to the principal is a sufficient action. An agent who fails to take action as required by this subsection is liable to the principal for the principal's reasonably foreseeable damages that could have been avoided if the agent had taken such action.
(5) A successor agent does not have a duty to review the conduct or decisions of a predecessor agent. Except as provided in subsection (4), a successor agent does not have a duty to institute any proceeding against a predecessor agent, or to file any claim against a predecessor agent's estate, for any of the predecessor agent's actions or omissions as agent.
(6) If a power of attorney requires that two or more persons act together as co-agents, notwithstanding the requirement that they act together, one or more of the agents may delegate to a co-agent the authority to conduct banking transactions as provided in s. 709.2208(1), whether the authority to conduct banking transactions is specifically enumerated or incorporated by reference to that section in the power of attorney.


§ 709.2112.  Reimbursement and compensation of agent [Effective October 1, 2011]
   (1) Unless the power of attorney otherwise provides, an agent is entitled to reimbursement of expenses reasonably incurred on behalf of the principal.
(2) Unless the power of attorney otherwise provides, a qualified agent is entitled to compensation that is reasonable under the circumstances.
(3) Notwithstanding any provision in the power of attorney, an agent may not be paid compensation unless the agent is a qualified agent.
(4) For purposes of this section, the term "qualified agent" means an agent who is the spouse of the principal, an heir of the principal within the meaning of s. 732.103, a financial institution that has trust powers and a place of business in this state, an attorney or certified public accountant who is licensed in this state, or a natural person who is a resident of this state and who has never been an agent for more than three principals at the same time.


§ 709.2113.  Agent's acceptance of appointment [Effective October 1, 2011]
   Except as otherwise provided in the power of attorney, a person accepts appointment as an agent by exercising authority or performing duties as an agent or by any other assertion or conduct indicating acceptance. The scope of an agent's acceptance is limited to those aspects of the power of attorney for which the agent's assertions or conduct reasonably manifests acceptance.


§ 709.2114.  Agent's duties [Effective October 1, 2011]
   (1) An agent is a fiduciary. Notwithstanding the provisions in the power of attorney, an agent who has accepted appointment:
   (a) Must act only within the scope of authority granted in the power of attorney. In exercising that authority, the agent:
      1. May not act contrary to the principal's reasonable expectations actually known by the agent;
      2. Must act in good faith;
      3. May not act in a manner that is contrary to the principal's best interest, except as provided in paragraph (2)(d) and s. 709.2202; and
      4. Must attempt to preserve the principal's estate plan, to the extent actually known by the agent, if preserving the plan is consistent with the principal's best interest based on all relevant factors, including:
         a. The value and nature of the principal's property;
         b. The principal's foreseeable obligations and need for maintenance;
         c. Minimization of taxes, including income, estate, inheritance, generation-skipping transfer, and gift taxes;
         d. Eligibility for a benefit, a program, or assistance under a statute or rule; and
         e. The principal's personal history of making or joining in making gifts;
   (b) May not delegate authority to a third person except as provided in s. 518.112;
   (c) Must keep a record of all receipts, disbursements, and transactions made on behalf of the principal; and
   (d) Must create and maintain an accurate inventory each time the agent accesses the principal's safe-deposit box, if the power of attorney authorizes the agent to access the box.
(2) Except as otherwise provided in the power of attorney, an agent who has accepted appointment shall:
   (a) Act loyally for the sole benefit of the principal;
   (b) Act so as not to create a conflict of interest that impairs the agent's ability to act impartially in the principal's best interest;
   (c) Act with the care, competence, and diligence ordinarily exercised by agents in similar circumstances; and
   (d) Cooperate with a person who has authority to make health care decisions for the principal in order to carry out the principal's reasonable expectations to the extent actually known by the agent and, otherwise, act in the principal's best interest.
(3) An agent who acts in good faith is not liable to any beneficiary of the principal's estate plan for failure to preserve the plan.
(4) If an agent is selected by the principal because of special skills or expertise possessed by the agent or in reliance on the agent's representation that the agent has special skills or expertise, the special skills or expertise must be considered in determining whether the agent has acted with care, competence, and diligence under the circumstances.
(5) Absent a breach of duty to the principal, an agent is not liable if the value of the principal's property declines.
(6) Except as otherwise provided in the power of attorney, an agent is not required to disclose receipts, disbursements, transactions conducted on behalf of the principal, or safe deposit box inventories, unless ordered by a court or requested by the principal, a court-appointed guardian, another fiduciary acting for the principal, a governmental agency having authority to protect the welfare of the principal, or, upon the death of the principal, by the personal representative or successor in interest of the principal's estate. If requested, the agent must comply with the request within 60 days or provide a writing or other record substantiating why additional time is needed and comply with the request within an additional 60 days.


§ 709.2115.  Exoneration of agent [Effective October 1, 2011]
   A power of attorney may provide that the agent is not liable for any acts or decisions made by the agent in good faith and under the power of attorney, except to the extent the provision:
   (1) Relieves the agent of liability for breach of a duty committed dishonestly, with improper motive, or with reckless indifference to the purposes of the power of attorney or the best interest of the principal; or
   (2) Was inserted as a result of an abuse of a confidential or fiduciary relationship with the principal.


§ 709.2116.  Judicial relief; conflicts of interests [Effective October 1, 2011]
   (1) A court may construe or enforce a power of attorney, review the agent's conduct, terminate the agent's authority, remove the agent, and grant other appropriate relief.
(2) The following persons may petition the court:
   (a) The principal or the agent, including any nominated successor agent.
   (b) A guardian, conservator, trustee, or other fiduciary acting for the principal or the principal's estate.
   (c) A person authorized to make health care decisions for the principal if the health care of the principal is affected by the actions of the agent.
   (d) Any other interested person if the person demonstrates to the court's satisfaction that the person is interested in the welfare of the principal and has a good faith belief that the court's intervention is necessary.
   (e) A governmental agency having regulatory authority to protect the welfare of the principal.
   (f) A person asked to honor the power of attorney.
(3) In any proceeding commenced by filing a petition under this section, including, but not limited to, the unreasonable refusal of a third person to allow an agent to act pursuant to the power of attorney, and in challenges to the proper exercise of authority by the agent, the court shall award reasonable attorney's fees and costs.
(4) If an agent's exercise of a power is challenged in a judicial proceeding brought by or on behalf of the principal on the grounds that the exercise of the power was affected by a conflict of interest, and evidence is presented that the agent or an affiliate of the agent had a personal interest in the exercise of the power, the agent or affiliate has the burden of proving, by clear and convincing evidence that the agent acted:
   (a) Solely in the interest of the principal; or
   (b) In good faith in the principal's best interest, and the conflict of interest was expressly authorized in the power of attorney.
(5) For purposes of subsection (4):
   (a) A provision authorizing an agent to engage in a transaction affected by a conflict of interest which is inserted into a power of attorney as the result of the abuse of a fiduciary or confidential relationship with the principal by the agent or the agent's affiliate is invalid.
   (b) Affiliates of an agent include:
      1. The agent's spouse;
      2. The agent's descendants, siblings, parents, or their spouses;
      3. A corporation or other entity in which the agent, or a person who owns a significant interest in the agent, has an interest that might affect the agent's best judgment;
      4. A person or entity that owns a significant interest in the agent; or
      5. The agent acting in a fiduciary capacity for someone other than the principal.


§ 709.2117.  Agent's liability [Effective October 1, 2011]
   An agent who violates this part is liable to the principal or the principal's successors in interest for the amount required to:
   (1) Restore the value of the principal's property to what it would have been had the violation not occurred; and
   (2) Reimburse the principal or the principal's successors in interest for the attorney's fees and costs paid from the principal's funds on the agent's behalf in defense of the agent's actions.


§ 709.2118.  Agent's resignation [Effective October 1, 2011]
   Unless the power of attorney provides a different method for an agent's resignation, an agent may resign by giving notice to the principal, to the guardian if the principal is incapacitated and one has been appointed for the principal, and to any co-agent, or if none, the next successor agent.


See Part II for the rest of the statute.

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