Florida Elder Law & Estate Planning Blog
Florida Durable Power of Attorney for Property: New law terminates spouse’s powers when dissolution of marriage is pending
August 13, 2012
There have been changes to Florida Statute 709.2109 governing the Durable Power of Attorney.
Under the new law, in the event of divorce or annulment, or when an action is filed for divorce or legal separation, your spouse loses the authority you have given him/her under your Florida Durable Power of Attorney for Property. The only exception is if the Durable Power of Attorney specifically states that the agent’s powers continue under these circumstances. The new law became effective Oct. 1, 2011. However, it applies to every Florida Durable Power of Attorney regardless of the date the document was executed.
Preventing unauthorized use of a photocopy
If you are divorced or if you have a divorce, annulment, or legal separation pending, you should take additional steps to ensure that an unsuspecting third party such as a bank or brokerage does not permit your spouse (or ex-spouse) to handle your affairs. These steps are particularly critical for someone whose Durable Power of Attorney was executed on or after October 1, 2011 because in that case, a photocopy is now considered as valid as the original under Florida law. Therefore it would not be much of a stretch for an unauthorized spouse or ex-spouse to inappropriately act by presenting a photocopy to a financial institution. Steps to take:
- You should formally revoke your Durable Power of Attorney
- The revocation should be recorded on public record
- Copies of the revocation should be served on all of your financial institutions
- Destroying the original Durable Power of Attorney is NOT sufficient
Health care agent’s powers left unchanged by pending dissolution
Florida Statute 765.104, the law governing the Florida Health Care Power of Attorney, has not changed. If you’ve authorized your spouse to make your health care decisions under that document, he/she loses that authority once a dissolution of marriage has occurred. However, your spouse’s authority is NOT terminated by a pending dissolution or annulment of marriage.
Therefore, if you are in the process of divorcing and your Health Care Power of Attorney or your Health Care Surrogate names your spouse as your health care agent, you will have to formally revoke it in order to terminate your spouse’s ability to make health care decisions on your behalf.