Florida Durable Power of Attorney Law Changes

October 1, 2011:

Florida has a new Durable Power of Attorney law effective Oct. 1, 2011. A Florida Durable Power of Attorney authorizes someone (your “agent”) to handle your financial affairs.

The new Florida Statute brings Florida law in line with the Uniform Power of Attorney Act as drafted by the National Conference of Commissioners on Uniform State Laws. The updated law seeks to provide Florida residents with increased protection from potential financial fraud and overreaching by authorized agents.

Any Durable Power of Attorney signed before October 1, 2011 which was valid at the time it was executed, will still be valid. However, Florida residents may want to consider updating this legal instrument at some point, in order to take advantage of the additional protections provided by the new law.

Key provisions:

• All Durable Powers of Attorney signed on and after Oct. 1, 2011 will be immediate. In other words, your agent will have the power to act as soon as you execute the document. It is not necessary to establish that you are incapacitated for your agent to act.  (Conversely,  a Springing Durable Power of Attorney — one that empowers the agent to act only upon the principal’s incapacity – is not valid if signed on or after Oct. 1.)

• Florida residents have routinely named backup agents in their Florida Durable Power of Attorney. However, technically speaking, there has never been a basis in Florida law for doing so. The new law rectifies that situation by officially recognizing that backup agents may be included in the Durable Power of Attorney.

• Additionally, under the new law, if you have named co-agents, each one can act alone without the consent or knowledge of the other, unless you specify otherwise in the instrument.

• Under the law prior to Oct. 1, only an original Durable Power of Attorney had to be honored. Thus, people who had a Durable Power of Attorney would hold on to the original, knowing that any photocopies distributed would not be sufficient for their agents to act. Now, photocopies and electronic copies of the Durable Power of Attorney have the same validity as an original. Although this can be a convenience for you and your agents, it also requires that you be that much more cautious about whom you give a photocopy.

  Additionally, if you ever wish to revoke your Durable Power of Attorney, besides just destroying the original, you will need to take additional steps to prevent someone you no longer want as your agent from exercising powers using a photocopy of the original. These additional steps include: recording the revocation with the Clerk of the Court in Public Records; sending copies of the revocation to all of your financial institutions; and formally notifying the person who had been previously named.

• The new law makes it even more necessary for the principal to designate the specific powers granted to the agent. It is not sufficient for your Durable Power of Attorney to state your agent can do anything you can do. For example,  if you want your agent to be able to buy or sell your real property, you must say so in your Durable Power of Attorney. The new law takes this safeguard a step farther with regard to certain so-called “superpowers.” An example of a superpower is the ability to make gifts from the principal’s monies. If you wish to grant your agent a superpower, you will be required to initial  that part of your Durable Power of Attorney authorizing it.

The Karp Law Firm has revised its Florida Durable Power of Attorney to comply with the new laws effective Oct. 1. Our meetings with clients will of course continue to include discussion of the powers that they wish to incorporate.

Powers of Attorney are not forms. They are legal documents which empower someone to do many things depending on what the Power of Attorney says. You must understand your Power of Attorney and what it does and does not authorize before you sign it. In fact, there is no statutory form for the Durable Power of Attorney in the State of Florida. Our legislature recognizes that every individual has different needs and requires the advice of a legal professional before signing one.

We have always advised against using online Durable Power of Attorney forms or ready-made forms from books or office supply stores. Using generic forms has always been a potentially costly mistake, and the likelihood of errors is even greater with passage of this new law.  Our attorneys are available to advise you. Please contact us for a consultation.