Florida Durable Power of Attorney

The Power of Attorney or “PoA” is a legal instrument that allows you to be in two places at once. Let us assure you that we are not spinning a Harry Potteresque tale of magic and wizardry, however. For one — it takes more than a mere waive of the wand and utterance of incoherent phrase to create a Power of Attorney. In this installment of the Business Blog, we will be discussing the Florida Power of Attorney with emphasis on the upcoming changes in the Florida Power of Attorney law.

Florida Power of Attorney Purposes.

You can use a Florida Power of Attorney to appoint another person to act in your place as if that person were you. For purposes of a PoA, you are the Principal, and the person you appoint is your Agent. You can give your Agent a broad range of powers via a General Florida Power of Attorney, or only a few specific powers via a Special Florida Power of Attorney. General and Special PoAs will only be effective while you are alive and have capacity to make decisions for yourself. A Durable PoA is a PoA that contains legal language authorizing your Agent to act for you in the event of your death or incapacity. As you can see, the PoA can be extremely useful. As with all things useful, however, the PoA comes with its own set of snags.

Florida Power of Attorney Requirements.

The Florida Power of Attorney has always been subject to strict requirements. For example, just as with a will or a deed, two witnesses are required for the execution of a PoA. In certain cases, very specific language must be used to create an effective Florida Power of Attorney. Recently, in an attempt to bring the Florida Power of Attorney statute into conformity with the Uniform Power of Attorney Act, Florida lawmakers have introduced a slew of changes to the Florida Power of Attorney law. The changes are due to become effective on October 1st of 2011.

PoA Changes.

Let’s open with some good news: A Florida Power of Attorney properly executed prior to October 1st of 2011 is not subject to the new requirements and will remain effective under the old requirements. Also, the state of Florida will continue to give full faith and credit to PoAs properly executed in other states. For purposes of this article, we will limit discussion to three main affected areas: Florida Power of Attorney and notifying Third Parties, the Durable Power of Attorney or “DPoA”, and the General Power of Attorney or “GPoA”.

Third Parties.

The new law affects the manner in which you notify third parties of changes to your PoA. Third parties are individuals and institutions, such as banks, that rely on the authority granted by your PoA. Under the new law, if you modify or terminate your PoA, you have to follow certain procedures to let these third parties know of the changes you’ve made. Notice to third parties and agents must now be in writing, and notice to banking institutions is subject to additional requirements.

Durable PoA.

A standard Durable PoA becomes effective the moment you execute it. This means that your Agent may start acting under the authority of the DPoA immediately. In the past, if you didn’t want to give your Agent all that power right away, you could have created a “springing” DPoA, a type of DPoA that becomes effective only at the time of your death or incapacity. The new law, however, expressly eliminates the springing DPoA. Fortunately, springing DPoAs created prior to October 1st of 2011 will remain valid.

General PoA.

Along with the springing DPoA, the new law technically eliminates the General Power of Attorney, as well. General grants of authority will no longer be effective under the new law. Instead, in order to be effective, each PoA must contain language listing the specific powers granted. The new law does provide for language that may be used to convey a series of powers, however. For example, the phrase “authority to conduct banking transactions as provided in s. 709.2208(1), F.S.” will bestow upon your Agent the authority to deal with banking institutions on your behalf: to establish or terminate accounts, contract for banking services, and withdraw or transfer funds.

Conclusion.

That’s it for this entry of the Business Blog. We hope that you found this article informative. If you would like to obtain further information regarding a Florida Power of Attorney or if you require other legal assistance, please do not hesitate to contact the attorneys at the Law Office of Grigaltchik & Galustov, P.A.