Part II; The Florida Power of Attorney Act, Florida Statutes 709.2119-709.2402 is listed verbatim below
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§ 709.2119. Acceptance of and reliance upon power of attorney [Effective October 1, 2011]
(1) (a) A third person who in good faith accepts a power of attorney that appears to be executed in the manner required by law at the time of its execution may rely upon the power of attorney and the actions of the agent which are reasonably within the scope of the agent's authority and may enforce any obligation created by the actions of the agent as if:
1. The power of attorney were genuine, valid, and still in effect;
2. The agent's authority were genuine, valid, and still in effect; and
3. The authority of the officer executing for or on behalf of a financial institution that has trust powers and acting as agent is genuine, valid, and still in effect.
(b) For purposes of this subsection, and without limiting what constitutes good faith, a third person does not accept a power of attorney in good faith if the third person has notice that:
1. The power of attorney is void, invalid, or terminated; or
2. The purported agent's authority is void, invalid, suspended, or terminated.
(2) A third person may require:
(a) An agent to execute an affidavit stating where the principal is domiciled; that the principal is not deceased; that there has been no revocation, or partial or complete termination by adjudication of incapacity or by the occurrence of an event referenced in the power of attorney; that there has been no suspension by initiation of proceedings to determine incapacity, or to appoint a guardian, of the principal; and, if the affiant is a successor agent, the reasons for the unavailability of the predecessor agents, if any, at the time the authority is exercised.
(b) An officer of a financial institution acting as agent to execute a separate affidavit, or include in the form of the affidavit, the officer's title and a statement that the officer has full authority to perform all acts and enter into all transactions authorized by the power of attorney for and on behalf of the financial institution in its capacity as agent. A written affidavit executed by the agent under this subsection may, but need not, be in the following form:
STATE OF........... COUNTY OF...........
Before me, the undersigned authority, personally appeared (attorney in fact) ("Affiant"), who swore or affirmed that:
1. Affiant is the attorney in fact named in the Durable Power of
Attorney executed by (principal) ("Principal") on (date)...
2. This Power of Attorney is currently exercisable by Affiant. The
principal is domiciled in (insert name of state, territory, or foreign
3. To the best of Affiant's knowledge after diligent search and inquiry:
a. The Principal is not deceased;
b. Affiant's authority has not been suspended by initiation of proceedings to determine incapacity or to appoint a guardian or a guardian advocate; and
c. There has been no revocation, or partial or complete termination, of the power of attorney or of Affiant's authority.
4. Affiant is acting within the scope of authority granted in the power of attorney.
5. Affiant is the successor to (insert name of predecessor agent) , who has resigned, died, become incapacitated, is no longer qualified to serve, has declined to serve as agent, or is otherwise unable to act, if applicable.
6. Affiant agrees not to exercise any powers granted by the Durable Power of Attorney if Affiant attains knowledge that it has been revoked, has been partially or completely terminated or suspended, or is no longer valid because of the death or adjudication of incapacity of the Principal.
Sworn to (or affirmed) and subscribed before me this ... day of
(month) , (year) , by (name of person making statement)
(Signature of Notary Public-State of Florida)
(Print, Type, or Stamp Commissioned Name of Notary Public)
Personally Known OR Produced Identification (Type of Identification Produced)
(3) A third person who is asked to accept a power of attorney that appears to be executed in accordance with s. 709.2103 may in good faith request, and rely upon, without further investigation:
(a) A verified English translation of the power of attorney if the power of attorney contains, in whole or in part, language other than English;
(b) An opinion of counsel as to any matter of law concerning the power of attorney if the third person making the request provides in a writing or other record the reason for the request; or
(c) The affidavit described in subsection (2).
(4) An English translation or an opinion of counsel requested under this section must be provided at the principal's expense unless the request is made after the time specified in s. 709.2120(1) for acceptance or rejection of the power of attorney.
(5) Third persons who act in reliance upon the authority granted to an agent and in accordance with the instructions of the agent shall be held harmless by the principal from any loss suffered or liability incurred as a result of actions taken before the receipt of notice as provided in s. 709.2121. A third person who acts in good faith upon any representation, direction, decision, or act of the agent is not liable to the principal or the principal's estate, beneficiaries, or joint owners for those acts.
(6) The acts of an agent under a power of attorney are as valid and binding on the principal or the principal's estate as if the principal were alive and competent if, in connection with any activity pertaining to hostilities in which the United States is then engaged, the principal is officially listed or reported by a branch of the United States Armed Forces in a missing status as defined in 37 U.S.C. s. 551 or 5 U.S.C. s. 5561, regardless of whether the principal is dead, alive, or incompetent. Homestead property held as tenants by the entireties may not be conveyed by a power of attorney regulated under this provision until 1 year after the first official report or listing of the principal as missing or missing in action. An affidavit of an officer of the Armed Forces having maintenance and control of the records pertaining to those missing or missing in action that the principal has been in that status for a given period is conclusive presumption of the fact.
§ 709.2120. Refusal to accept power of attorney [Effective October 1, 2011]
(1) Except as provided in subsection (2):
(a) A third person must accept or reject a power of attorney within a reasonable time. A third person who rejects a power of attorney must state in writing the reason for the rejection.
(b) Four days, excluding Saturdays, Sundays, and legal holidays, are presumed to be a reasonable time for a financial institution to accept or reject a power of attorney with respect to:
1. A banking transaction, if the power of attorney expressly contains authority to conduct banking transactions pursuant to s. 709.2208(1); or
2. A security transaction, if the power of attorney expressly contains authority to conduct security transactions pursuant to s. 709.2208(2).
(c) A third person may not require an additional or different form of power of attorney for authority granted in the power of attorney presented.
(2) A third person is not required to accept a power of attorney if:
(a) The third person is not otherwise required to engage in a transaction with the principal in the same circumstances;
(b) The third person has knowledge of the termination or suspension of the agent's authority or of the power of attorney before exercising the power;
(c) A timely request by the third person for an affidavit, English translation, or opinion of counsel under s. 709.2119(4) is refused by the agent;
(d) Except as provided in paragraph (b), the third person believes in good faith that the power is not valid or that the agent does not have authority to perform the act requested; or
(e) The third person makes, or has knowledge that another person has made, a report to the local adult protective services office stating a good faith belief that the principal may be subject to physical or financial abuse, neglect, exploitation, or abandonment by the agent or a person acting for or with the agent.
(3) A third person who, in violation of this section, refuses to accept a power of attorney is subject to:
(a) A court order mandating acceptance of the power of attorney; and
(b) Liability for damages, including reasonable attorney's fees and costs, incurred in any action or proceeding that confirms, for the purpose tendered, the validity of the power of attorney or mandates acceptance of the power of attorney.
§ 709.2201. Authority of agent [Effective October 1, 2011]
(1) Except as provided in this section or other applicable law, an agent may only exercise authority specifically granted to the agent in the power of attorney and any authority reasonably necessary to give effect to that express grant of specific authority. General provisions in a power of attorney which do not identify the specific authority granted, such as provisions purporting to give the agent authority to do all acts that the principal can do, are not express grants of specific authority and do not grant any authority to the agent. Court approval is not required for any action of the agent in furtherance of an express grant of specific authority.
(2) As a confirmation of the law in effect in this state when this part became effective, such authorization may include, without limitation, authority to:
(a) Execute stock powers or similar documents on behalf of the principal and delegate to a transfer agent or similar person the authority to register any stocks, bonds, or other securities into or out of the principal's or nominee's name.
(b) Convey or mortgage homestead property. However, if the principal is married, the agent may not mortgage or convey homestead property without joinder of the principal's spouse or the spouse's guardian. Joinder by a spouse may be accomplished by the exercise of authority in a power of attorney executed by the joining spouse, and either spouse may appoint the other as his or her agent.
(c) If such authority is specifically granted in a durable power of attorney, make all health care decisions on behalf of the principal, including, but not limited to, those set forth in chapter 765.
(3) Notwithstanding the provisions of this section, an agent may not:
(a) Perform duties under a contract that requires the exercise of personal services of the principal;
(b) Make any affidavit as to the personal knowledge of the principal;
(c) Vote in any public election on behalf of the principal;
(d) Execute or revoke any will or codicil for the principal; or
(e) Exercise powers and authority granted to the principal as trustee or as court-appointed fiduciary.
(4) Subject to s. 709.2202, if the subjects over which authority is granted in a power of attorney are similar or overlap, the broadest authority controls.
(5) Authority granted in a power of attorney is exercisable with respect to property that the principal has when the power of attorney is executed and to property that the principal acquires later, whether or not the property is located in this state and whether or not the authority is exercised or the power of attorney is executed in this state.
(6) An act performed by an agent pursuant to a power of attorney has the same effect and inures to the benefit of and binds the principal and the principal's successors in interest as if the principal had performed the act.
§ 709.2202. Authority that requires separate signed enumeration [Effective October 1, 2011]
(1) Notwithstanding s. 709.2201, an agent may exercise the following authority only if the principal signed or initialed next to each specific enumeration of the authority, the exercise of the authority is consistent with the agent's duties under s. 709.2114, and the exercise is not otherwise prohibited by another agreement or instrument:
(a) Create an inter vivos trust;
(b) With respect to a trust created by or on behalf of the principal, amend, modify, revoke, or terminate the trust, but only if the trust instrument explicitly provides for amendment, modification, revocation, or termination by the settlor's agent;
(c) Make a gift, subject to subsection (3);
(d) Create or change rights of survivorship;
(e) Create or change a beneficiary designation;
(f) Waive the principal's right to be a beneficiary of a joint and survivor annuity, including a survivor benefit under a retirement plan; or
(g) Disclaim property and powers of appointment.
(2) Notwithstanding a grant of authority to do an act described in subsection (1), unless the power of attorney otherwise provides, an agent who is not an ancestor, spouse, or descendant of the principal may not exercise authority to create in the agent, or in an individual to whom the agent owes a legal obligation of support, an interest in the principal's property, whether by gift, right of survivorship, beneficiary designation, disclaimer, or otherwise.
(3) Unless the power of attorney otherwise provides, a provision in a power of attorney granting general authority with respect to gifts authorizes the agent to only:
(a) Make outright to, or for the benefit of, a person a gift of any of the principal's property, including by the exercise of a presently exercisable general power of appointment held by the principal, in an amount per donee not to exceed the annual dollar limits of the federal gift tax exclusion under 26 U.S.C. s. 2503(b), as amended, without regard to whether the federal gift tax exclusion applies to the gift, or if the principal's spouse agrees to consent to a split gift pursuant to 26 U.S.C. s. 2513, as amended, in an amount per donee not to exceed twice the annual federal gift tax exclusion limit; and
(b) Consent, pursuant to 26 U.S.C. s. 2513, as amended, to the splitting of a gift made by the principal's spouse in an amount per donee not to exceed the aggregate annual gift tax exclusions for both spouses.
(4) Notwithstanding subsection (1), if a power of attorney is otherwise sufficient to grant an agent authority to conduct banking transactions, as provided in s. 709.2208(1), conduct investment transactions as provided in s. 709.2208(2), or otherwise make additions to or withdrawals from an account of the principal, making a deposit to or withdrawal from an insurance policy, retirement account, individual retirement account, benefit plan, bank account, or any other account held jointly or otherwise held in survivorship or payable on death, is not considered to be a change to the survivorship feature or beneficiary designation, and no further specific authority is required for the agent to exercise such authority. A bank or other financial institution does not have a duty to inquire as to the appropriateness of the agent's exercise of that authority and is not liable to the principal or any other person for actions taken in good faith reliance on the appropriateness of the agent's actions. This subsection does not eliminate the agent's fiduciary duties to the principal with respect to any exercise of the power of attorney.
(5) This section does not apply to a power of attorney executed before October 1, 2011.
§ 709.2208. Banks and other financial institutions [Effective October 1, 2011]
(1) A power of attorney that includes the statement that the agent has "authority to conduct banking transactions as provided in section 709.2208(1), Florida Statutes" grants general authority to the agent to engage in the following transactions with financial institutions without additional specific enumeration in the power of attorney:
(a) Establish, continue, modify, or terminate an account or other banking arrangement with a financial institution.
(b) Contract for services available from a financial institution, including renting a safe-deposit box or space in a vault.
(c) Withdraw, by check, order, electronic funds transfer, or otherwise, money or property of the principal deposited with or left in the custody of a financial institution.
(d) Receive statements of account, vouchers, notices, and similar documents from a financial institution and act with respect to them.
(e) Purchase cashier's checks, official checks, counter checks, bank drafts, money orders, and similar instruments.
(f) Endorse and negotiate checks, cashier's checks, official checks, drafts, and other negotiable paper of the principal or payable to the principal or the principal's order, transfer money, receive the cash or other proceeds of those transactions, and accept a draft drawn by a person upon the principal and pay it when due.
(g) Apply for, receive, and use debit cards, electronic transaction authorizations, and traveler's checks from a financial institution.
(h) Use, charge, or draw upon any line of credit, credit card, or other credit established by the principal with a financial institution.
(i) Consent to an extension of the time of payment with respect to commercial paper or a financial transaction with a financial institution.
(2) A power of attorney that specifically includes the statement that the agent has "authority to conduct investment transactions as provided in section 709.2208(2), Florida Statutes" grants general authority to the agent with respect to securities held by financial institutions to take the following actions without additional specific enumeration in the power of attorney:
(a) Buy, sell, and exchange investment instruments.
(b) Establish, continue, modify, or terminate an account with respect to investment instruments.
(c) Pledge investment instruments as security to borrow, pay, renew, or extend the time of payment of a debt of the principal.
(d) Receive certificates and other evidences of ownership with respect to investment instruments.
(e) Exercise voting rights with respect to investment instruments in person or by proxy, enter into voting trusts, and consent to limitations on the right to vote.
(f) Sell commodity futures contracts and call and put options on stocks and stock indexes.
For purposes of this subsection, the term "investment instruments" means stocks, bonds, mutual funds, and all other types of securities and financial instruments, whether held directly, indirectly, or in any other manner, including shares or interests in a private investment fund, including, but not limited to, a private investment fund organized as a limited partnership, a limited liability company, a statutory or common law business trust, a statutory trust, or a real estate investment trust, joint venture, or any other general or limited partnership; derivatives or other interests of any nature in securities such as options, options on futures, and variable forward contracts; mutual funds; common trust funds; money market funds; hedge funds; private equity or venture capital funds; insurance contracts; and other entities or vehicles investing in securities or interests in securities whether registered or otherwise, except commodity futures contracts and call and put options on stocks and stock indexes.
§ 709.2301. Principles of law and equity [Effective October 1, 2011]
The common law of agency and principles of equity supplement this part, except as modified by this part or other state law.
§ 709.2302. Laws applicable to financial institutions and entities [Effective October 1, 2011]
This part does not supersede any other law applicable to financial institutions or other entities, and that law controls if inconsistent with this part.
§ 709.2303. Remedies under other law [Effective October 1, 2011]
The remedies under this part are not exclusive and do not abrogate any right or remedy under any other law other than this part.
§ 709.2401. Relation to electronic signatures in federal law [Effective October 1, 2011]
This part modifies, limits, and supersedes the federal Electronic Signatures in Global and National Commerce Act, 15 U.S.C. s. 7001 et seq., but does not modify, limit, or supersede s. 101(c) of that act, or authorize electronic delivery of any of the notices described in s. 103(b) of that act.
Changes take effect
§ 709.2402. Effect on existing powers of attorney [Effective October 1, 2011]
Except as otherwise provided in this part:
(1) With respect to formalities of execution, this part applies to a power of attorney created on or after October 1, 2011.
(2) With respect to all matters other than formalities of execution, this part applies to a power of attorney regardless of the date of creation.
(3) With 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.
(4) An act of an agent occurring before October 1, 2011, is not affected by this part.