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Summer 2012
IN THIS ISSUE
d&G Lawyer News
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Florida Adopts New Power of Attorney Act
On October 1, 2011, Florida’s new Powers of Attorney Act (“the Act”) became effective. The Act modifies, clarifies, and codifies Florida law related to a power of attorney. The changes primarily relate to durable powers of attorney (those that survive the incapacitation of the principal). The Act does not invalidate powers of attorney created before October 1, 2011 and only affects those executed on or after October 1, 2011. See §709.2402, Fla. Stat. As a result, before you sign or draft a power of attorney it is important that you pay close attention to some key changes in the law. This will help ensure that your power of attorney is in compliance with the new act and that it produces the proper principal-agent relationship that you seek to create.
Among other things, the Act has changed Florida law as follows:
(1) Copies, both photocopies and electronic copies, of an original power of attorney have the same effect as the original signed document. See §709.2106(5), Fla. Stat.
(2) The Act enumerates certain powers that may be exercised only if the principal signs or initials next to each specific enumeration, the enumeration is consistent with the agent’s duties under §709.2114, Fla. Stat., and the exercise is not otherwise prohibited by another agreement or instrument. See §709.2202(1), Fla. Stat. These powers are (a) the power to create an inter vivos trust, (b) the power to amend modify, revoke, or terminate a trust, (c) the power to make a gift, (d) the power to change the right of survivorship, (e) the power to create or change a beneficiary designation, (f) the principal’s right to be a beneficiary of a joint and survivor annuity, and (g) the power to disclaim property and powers of appointment. See §709.2202(1) (a)-(g), Fla. Stat.
(3) Powers of attorney that are created to take effect at a future date or upon the occurrence of a future event or contingency are no longer valid, unless they were executed before October 1, 2011. See §709.2108(2) and (3), Fla. Stat. As a result, powers of attorney are exercisable when executed and no longer can become effective upon the principal’s lack of capacity. See §709.2108(1) and (2), Fla. Stat.
Inartfully and broadly drafted powers of attorney can have unintended consequences, such as requiring the arbitration of a principal’s claim, instead of litigating that claim in court. See Sovereign Healthcare of Tampa, LLC v. Estate of Huerta, 14 So.3d 1033 (Fla. 2d DCA 2009) (compelling arbitration when a daughter-in-law signed an admission form containing an arbitration clause because the power of attorney language was so general and broad that it encompassed waiving her mother-in-law’s right to a jury trial, even though the power of attorney did not specifically grant her that authority.). The Sovereign court stated that a “trial court correctly compels the enforcement of arbitration provisions where a power of attorney either makes a specific grant of such authority or unambiguously makes a broad, general grant of authority.” Sovereign, 14 So.3d at 1034. Despite the fact that the new Act provides that “…an agent may only exercise authority specifically granted to the agent in the power of attorney,” the Act also states that the agent may also exercise “…any authority reasonably necessary to give effect to that express grant of specific authority.” See §709.2201, Fla. Stat. Because of the breadth of this provision, the proper limits should be placed on the grant of authority contained in your power of attorney in order to achieve the desired grant of authority.
So, for example, if the principle would not want a future nursing home abuse claim decided by an arbitrator, it would be prudent to state in the power of attorney that the attorney-in-fact does not have the power to waive the principle’s right to a jury trial, or does not have the power to agree to the arbitration of claims.
The recent statutory changes to the law governing powers of attorney are very important. de la Parte & Gilbert, P.A. can assist you in the preparation of a power of attorney or in the litigation of issues related to a power of attorney. Please contact Vivian Arenas-Battles at (813) 229-2775 or varenas@dgfirm.com if you need assistance.
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