The Florida Power of Attorney Act
1. Execution Rules. Powers of attorney executed after the effective date of the Act (October 1, 2011) must be signed by the principal and by two subscribing witnesses, and be acknowledged by the principal before a notary public. A power of attorney executed before October 1, 2011 is valid if its execution complied with the laws of Florida at the time it was executed. Additionally, the Act considers a power of attorney executed in another state to be valid in Florida (even if it doesn’t comply with the execution requirements of Florida) if it complied with the execution requirements of the state of execution at the time it was executed.
Under the Act, Florida Statutes, Chapter 709, a photocopy or electronic copy of a power of attorney has the same effect as the original, unless otherwise provided in the power of attorney.
2. Power of Attorney (defined). A power of attorney is a writing that grants authority to an agent to act in the place of the principal. Pursuant to the Act, a principal is an individual who grants authority to an agent and an agent is the person granted authority by the principal in a power of attorney. The Act allows for both durable and nondurable powers of attorney. A durable power of attorney is one that is not terminated by the incapacity of the principal, whereas a nondurable power of attorney is terminated upon the principal’s incapacity. For a power of attorney to be durable, it must state that it is not terminated by the subsequent incapacity of the principal, or similar words that evidence the principal’s intent.
The Act applies to all powers of attorney created by an individual except a proxy or other delegation to exercise voting or management rights with respect to an entity, a power created on a form prescribed by a governmental agency or subdivision for a governmental purpose, and a power coupled with an interest (e.g., a power given to a creditor to sell pledged collateral).
3. Termination. A power of attorney terminates upon the occurrence of any of the following events: (a) death of the principal; (b) incapacity of the principal when the power of attorney is not durable; (c) adjudication of incapacity of the principal by a court; (d) revocation of the power of attorney by the principal; (e) termination of the power of attorney pursuant to its terms; or (f) accomplishment of the purpose of the power
4. Revocation. A principal may revoke a power of attorney at any time by executing a new power of attorney or other signed writing evidencing the principal’s intent to revoke the power of attorney. [Note: Under the Act simply revoking the power of attorney can be accomplished without witnesses or notarization and the principal may, but is not required to, give notice of the revocation to the agent.]
5. Springing Powers (no longer valid). A springing power of attorney is one which does not become effective until the incapacity of the principal. Prior to the effective date of the Act, springing powers of attorney are valid in Florida. Following the effective date of the Act, however, powers of attorney must be effective as of the time they are executed (except for certain military powers of attorney)
A. Who can be an agent? The agent must be a natural person who is 18 years of age or older or is a financial institution that has trust powers, has a place of business in Florida, and is authorized to conduct trust business in Florida.
B. How many agents are required? A principal may designate a single agent or two or more persons to act as co-agents. Unless the power of attorney provides otherwise, each co-agent may exercise its authority independently. This is a change from existing Chapter 709, which provides a default rule that a majority of co-agents is required to take all acts in exercise of the power. Additionally, a principal may designate one or more successor agents to act if the initial agent is no longer willing or authorized to serve. Unless the power of attorney provides otherwise, the successor agent will have the same authority as the original agent.
C. Authority to Act. Under the Act, there are now certain authorities that the agent may exercise only if the principal signs or initials next to the specific enumeration of the authority in the power of attorney, such authority is consistent with the agent’s duties and the exercise is not otherwise prohibited by another instrument. These additional requirements apply to the authority to create an inter vivos trust, to amend, revoke or terminate a trust created by the principal, to make a gift, to create or change rights of survivorship, to create or change a beneficiary designation, to waive the principal’s right to be a beneficiary of a joint and survivor annuity, and to disclaim property and powers of appointment.
D. Power to Make Gifts is limited. Notwithstanding the separate signed enumeration of authority to do any of the acts specified above, an agent who is not an ancestor, spouse or descendant of the principal may not exercise authority to create in the agent, or in someone the agent is legally obligated to support, any interest in the principal’s property, whether by gift, right of survivorship, beneficiary designation, disclaimer or otherwise, unless the power of attorney provides otherwise. Also, unless the power of attorney provides otherwise, a general grant of authority in a power of attorney to make gifts only authorizes the agent to make gifts of the principal’s property outright to, or for the benefit of, a person in an amount per donee not to exceed the federal gift tax annual exclusion amount (or twice that amount if the principal’s spouse agrees to gift splitting).
E. Resignation. Unless the power of attorney provides a different method for an agent’s resignation, an agent may resign by giving notice to the principal, to the principal’s guardian if one has been appointed, or to any co-agent. If no co-agent is serving, the agent may resign by giving notice to the next successor agent.
Additional provisions under the Florida Power of Attorney Act are equally significant, and one should seek the services of a qualified attorney before preparing or relying on instruments containing Powers of Attorney.
There are many aspects to an overall estate plan, which should properly be reviewed by an attorney and tax planner on an individual basis. This information is intended to give you a basic understanding of various aspects of estate planning, but it cannot substitute for a thorough review with your estate planning attorney. Preparation of Wills, Trusts and other estate planning instruments must be implemented as part of an overall estate plan. The estate plan should reflect your family, economic and tax goals. Thorough planning and review of each individual's needs, including their tax considerations must be discussed with qualified professionals.
To ensure compliance with requirements imposed by the IRS under Circular 230, we inform you that any U.S. federal tax advice contained herein, unless otherwise specifically stated, was not intended or written to be used, and cannot be used, for the purpose of: (1) avoiding penalties under the Internal Revenue Code; or (2) promoting, marketing or recommending to another party any matters addressed herein.
For further information, call Samole Law Firm, P.A.