Florida Elder Law & Estate Planning Blog


New Florida Durable Power of Attorney Law Effective Oct. 1, 2011

September 26, 2011

Don’t panic:  If you are a Florida resident with a valid Durable Power of Attorney (DPOA) signed before October 1, 2011, it will still be valid after Oct. 1.  You do not need to do anything. You do not need to change your current document. Your Power of Attorney will continue to be honored.

 

But there are new rules for any Florida Durable Power of Attorney signed on or after October 1, 2011.

 

What’s in the new Durable Power of Attorney law

  • Certain sweeping powers granted to an agent – so-called “superpowers” – require special treatment. One example of a superpower is the ability to make gifts from the principal’s funds.  This can be a very important power for the purpose of Medicaid planning. To grant an agent the ability to exercise a superpower, that superpower must be specifically mentioned in the DPOA, and that section of the document must be physically initialed by the principal.

 

  • Any Durable Power of Attorney signed on and after Oct. 1, 2011 will be immediate, not springing. In other words, the agent’s authority to act is not contingent upon the principal’s incapacity. The agent will have the authority to act as soon as the instrument is signed.

 

  • The new law officially recognizes that backup agents may be included in the Durable Power of Attorney (even though most people routinely included back-ups in their DPOA even before the change in the statute). Moreover, if  the principal desires that co-agents act only with the knowledge and consent of the others, the DPOA must specifically say so. If this provision is not included in the DPOA, it is assumed that each co-agent may act independently, without the knowledge or consent of the others.

 

  • The new law also states that for a Durable Power of Attorney signed on or after Oct. 1, a photocopy or electronic copy will be honored by financial institutions. This added convenience for principal and agent comes with some risk, though, particularly with regard to revocation: Even if the principal destroys the original document, an agent could present a copy to a financial institution and exercise powers the principal no longer wants him to have. Therefore, to revoke a DPOA, it’s advisable for the principal to take additional steps in addition to destroying the original. These extra steps include recording the revocation with the Clerk of the Court in Public Records; sending copies of the revocation to all financial institutions; and notifying all agents named in the revoked DPOA that the revocation has occurred.

 

Our Florida Elder Law and Estate Planning Lawyers have revised our Florida Durable Power of Attorney to comply with the new laws effective Oct. 1, 2011.  Do not try to adapt off-the-shelf or off-the-internet forms! The DPOA is a powerful  legal instrument and must be built around your individual goals and family circumstances. Mistakes can be costly. Consult with The Karp Law Firm.