Home End of Life Issues The New Florida Durable Power of Attorney statute

The New Florida Durable Power of Attorney statute

Among the new laws which the Florida legislature passed this session were substantial changes to the Durable Power of Attorney Statute. A durable power of attorney (DPOA) is a document in which you appoint someone to legally act on your behalf. Essentially, your agent steps into your shoes to handle your affairs. Currently, DPOA’s can take effect immediately or they can be “springing” meaning they do not take effect until the person becomes incapacitated.

The DPOA statute has not undergone such substantial changes since 2005, and this year’s changes are significant. The new changes will take effect on October 1, 2011. The good news is that DPOA’s that were valid under Florida law before the effective date will remain valid. DPOA’s signed after the effective date, may not be “springing” anymore, meaning it takes effect immediately once signed (and not when you become incapacitated). The new law also requires written notice with special notice for financial institutions. The statute will require the individual signing the DPOA to specifically initial certain powers if they want their agent to be able to use those powers (such as the power to make gifts, the power to qualify for public benefits, trust powers (creating, amending revoking, etc), the power to change or create rights of survivorship or beneficiary designations, the powers to waive beneficiary rights in annuities and retirement plans and the power to disclaim property and powers of appointment). You can also no longer have a blanket POA that grants powers to agents.

The DPOA statute also give banks the power to make you obtain a legal opinion that your POA is legally effective and it also gives the bank time to review POA’s to determine if they will accept them. This is especially troubling for snowbirds or those who have just moved here from another state.

If you have questions about your current power of attorney (or if you have had any major life changes in the last 3 to 5 years), you should consult an attorney to help you determine if you need to update your POA.

As your family circumstances change, contact trusted Tampa Florida area attorney, Laurie Ohall, to establish the necessary documents for your family’s health and financial protection.

13 Comments

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Ron

October 11, 2011 at 4:48 pm

Reply

Ron, There was a change in the Florida Durable Power of Attorney rules effective 10-1-2011 that you may want your attorney to review.

Vern
George Haralson

November 27, 2011 at 8:43 pm

Reply

I am now POA with a friend that wants to give POA to his previously estranged son. How do I quit the POA, so he can appoint his son?
- Laurie Ohall
  
  November 29, 2011 at 7:42 pm
  
  Reply
  
  Powers of attorney, unlike Wills, cannot be amended. In order to change who you want as your agent, you need to expressly revoke the POA (which is either stated in a new power of attorney or in some other writing signed by the Principal – the person signing the POA). I recommend, in addition to signing a new POA, that a separate revocation document also be signed so that this can be mailed to the old agent and any third parties (such as banks) to put them both on notice that the old agent is no longer allowed to serve as agent.
  
  In some POA’s, the Principal will list more than one agent. If the first agent does not wish to serve (or passes away), the agent can sign an affidavit of resignation to allow the next person in line to serve. In that case, there is no need to execute a new POA.
  
  If you would like more information, please feel free to call my office and I’d be happy to discuss this with you further (we offer free 15 minute telephone consultations).
jay kalish

December 20, 2011 at 1:03 pm

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My Attorney Daryl Jacobs of Vero Beach called to tell me about the change in the law which I appreciate and suggested we sign a new DPOA. He told us that even though the “Old” DPOA was signed last February and according to the new statue is still OK, he feels it could be challenged. A new one cost $ 175.00 Any Comments
mark wilson

January 5, 2012 at 11:44 pm

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my bestfriend gave me dpoa in 2009 and went to the attorney to tweek it for her son and the attorney changed the dpoa to her neighbor that took her there. what do i do now? iam the only one to protect her from not ending up in a nursing home. she want to die at home.so we went to do a new DPOA and 2 attorneys wont take her as a client,they say she’s too confused.
help me help my friend her children want to put her away and cash out.
- Laurie Ohall
  
  January 10, 2012 at 8:59 pm
  
  Reply
  
  Hi Mark,
  
  Please feel free to contact me at my office as each case is different and I offer a free phone consultation.
  
  813-514-8180
  
  ~Laurie
william

January 14, 2012 at 12:15 am

Reply

Under the new laws can the agent/DPOA also enter into a Personal Services Contract with the grantor of the DPOA?
- Laurie Ohall
  
  January 19, 2012 at 6:24 pm
  
  Reply
  
  Yes, the agent may enter into a PSC with the principal under the new DPOA statute, but in order to do so, the power should be specific and the principal should specifically initial the ability to do so – any power that is going to impact the principal’s existing estate plan should be initialed, whether the statute specifically references it or not.
Mario

January 23, 2012 at 6:45 pm

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Does the Oct. 2011 change to DPOA law allow for drafting a new springing DPOA that only authorizes enumerated powers and only after the principal is unable to conduct their own business affairs? I want to recreate the old form of DPOA.

How burdensome is it for the agent to prove that the principal is incapacitated? I already have someone that can pay my bills without a POA.
- Laurie Ohall
  
  January 26, 2012 at 3:01 pm
  
  Reply
  
  Great Question Mario!
  
  The new DPOA statute took away the right to have springing powers of attorney (except for military who can have deployment-contingent POA’s). A power of attorney signed after 10/1/11 cannot have the springing power language in it. POA’s that have springing powers and were prepared before 10/1/11 are grandfathered in. Only one licensed physician needs to sign the affidavit that the person lacks capacity to manage property and it needs to be the primary physician that cares for the principal.
Mario

January 26, 2012 at 8:10 pm

Reply

I just received drafts of my will and DPOA from an experienced lawyer. My DPOA does not have any list of enumerated powers for me to initial. I must have it redrafted. Is this form of uninitialed DPOA acceptable?

My brother and I are both single and are doing wills and DPOA with each other. We trust each other, but do not like giving up control before it is necessary. Our lawyer suggested maintaining physical control of the DPOA document so that the other party would not be able to use it without notice.
Is there any other way to replicate a “springing” document?

We are using wills to swap cars and personal property.

Real estate is being swapped with Life estate warranty deeds. The major assets are titled with beneficiaries, TOD and POD. Pensions and life insurance have beneficiaries.

Will the executor of my will be able to administer the transfer of the titled assets? If so, can there language to compel performance? Or, must I have a trust?
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