The New Florida Power of Attorney Act
By: Robert J. Naberhaus
· Elimination of powers of attorney that become effective upon a determination of the principal’s incapacity (so called “Springing Power of Attorney”) – all powers of attorney signed on or after October 1 are effective immediately and may not be made conditional upon the incapacity of the principal.
· A photocopy or electronic copy of a power of attorney has the same effect as the original unless the power of attorney provides otherwise.
· If a power of attorney appoints multiple agents, each agent may exercise authority independently of the other unless the power of attorney provides otherwise.
· An agent is entitled to reimbursement for expenses reasonably incurred on behalf of the principal and certain agents are also entitled to reasonable compensation.
· The Act defines the duties of the agent, including defining those duties the principal can and cannot modify in the power of attorney
· For powers of attorney signed on or after October 1, a principal must specify the authorities granted and general grants of authority (e.g., “I hereby grant my agent the authority to perform all acts that I may perform”) which do not identify specific authorities and do NOT grant any authority to the agent.
· For powers of attorney signed on or after October 1, there are no default authorities granted under the Act, although a principal may grant certain banking and investment authorities by specifically referring to the applicable provisions of the Act.
· For powers of attorney signed on or after October 1, in addition to the requirement that the principal specify the authorities granted, some authorities also require a separate signed enumeration such as the authorities to create, amend or revoke a trust, make a gift, and create or change rights of survivorship or beneficiary designations.
· The Act imposes a requirement that third persons (e.g., banks) accept or reject a power of attorney within a reasonable time (i.e., four business days for financial institutions), and, if rejected, state in writing the reasons for the rejection.
The Act makes these and many other changes to Florida law concerning powers of attorney, a critical estate planning document. Over time it will become more practical to have a power of attorney which incorporates the provisions of the Act since third parties will likely only look to the Act in determining the effectiveness of the power of attorney (even though some of the provisions of the Act will not apply to a power of attorney executed prior to October 1). In addition, agents acting under a power of attorney need to understand how the Act impacts their fiduciary duties and exposure to liability.