Did you know there has been a big change in the Florida Power of Attorney law? It happened on October 01, 2011.  If you have not been to see your estate planning attorney in more than three years, it is time to schedule an appointment.  If you have never been to an estate planning attorney, now is the opportune time, since this law has come into effect.

The power of attorney document is a document that allows someone else to legally act as you. This person is named the “attorney in fact”, or agent.  The agent has authority to do the things that you can do yourself, such as sign contracts, pursue lawsuits, apply for government benefits and open and close bank accounts.  
A durable power of attorney means the document is effective immediately upon signing and continues even if, at a later date, you become incapacitated.  It must contain specific language to be durable.  A springing power of attorney becomes effective only if you are incapacitated. The new law does not permit any new springing powers of attorney to be created after October 01, 2011.  However, documents executed prior to October 01 are still considered valid.  This is also true of existing durable powers of attorney.  The “old” documents are still considered valid.  However, it is recommended that everyone replace their “old” document with a new one, because it is unknown if or when a third party, such as a financial institution, is going to reject the document because it does not comply with the new law.  Eventually, third parties will stop accepting the old document and it could become problematic for you and your family.

One of the major changes in the law is that the principal, the person who gives the authority to the agent, must specifically acknowledge granting certain powers, unofficially named the “superpowers”. The seven superpowers include the authority to create an intervivos trust, modify a trust created by the principal(if the trust allows), make gifts, create or change rights of survivorship, create or change beneficiary designations, waive rights under annuities and retirement plans, and disclaim properties and powers of appointment.  The purpose of this acknowledgment is to protect the principal, so he absolutely understands the powers he is giving to his agent.

There are other significant changes.  Some of the changes include: copies can now be presented instead of originals, and qualified persons can accept a reasonable fee to serve as the agent.  Further, when a principal has named a spouse who subsequently files for separation or divorce, that spouse immediately loses authority.  In addition, the new law requires that all powers of attorney be executed with the formalities of a deed-witnessed by two people and notarized.  Previously, the document could give blanket authority for the agent to do anything that the principal could do.  This is no longer allowed. The agent gets only specifically enumerated powers.  Concerning out of state documents, these are valid if they are valid in their home state(i.e. executed properly per the state law).  It is still recommended that if you have recently moved to Florida, you should see an estate planning attorney to review your existing documents and determine if your legal documents need to be updated to comply with Florida law.  A bank or financial institution will most likely not be familiar with out of state documents and it could become problematic.  The safer course is to have Florida documents, if you intend to permanently reside in Florida.

The selection of an agent is an important process.  When choosing your agent, select a person over age eighteen, who is trusted, and who will be available when needed.  There is no requirement that the agent be a relative.  More than one agent can be selected to serve simultaneously or to serve successively.  A corporation operating in Florida that has trustee powers can also serve as an agent.  
There are duties required of all serving agents.  The agent must act in good faith, within the scope of authority granted, attempt to preserve the principal’s estate plan, perform personally, and keep accurate records.  They must not act contrary to the principal’s reasonable expectations, nor contrary to the best interests of the principal.

There are compelling reasons to have a power of attorney.  A well drafted instrument can keep you out of guardianship court. Guardianship is a legal proceeding where a legal guardian is appointed to handle the personal and financial affairs of a person who is incapacitated.  For your own protection, it is best to see an attorney who is qualified in this area of law and narrows their practice to estate planning and administration.  

Hallie L. Zobel, practices as a partner at Bailey Zobel, Pilcher, PLC, located in Maitland. Her practice mainly represents the elderly and planning for those family members with special needs. She has been a Florida bar member for over twenty three years.  Her website is www.yourcarinlawfirm.com  and she can be reached by email at Hallie@Yourcaringlawfirm.com.



 

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