What to Know About Florida's Power of Attorney Law
The rules for giving and getting a power of attorney in Florida changed in October 2011 when the state's Power of Attorney Act went into effect. This law completely replaced and superseded Florida's previous law governing powers of attorney. It applies to all POAs created on, before or after October 1, 2011, with one exception. A clause regarding "springing" powers has been grandfathered in from the old law. Here are some things you'll need to know about Florida POAs as of 2017.
- Signing formalities are crucial: The law requires that a person making a Florida power of attorney (called the "principal") must sign the document in front of two witnesses and a notary public. The notary can be one of the two witnesses.
The law also provides that powers of attorney properly executed under the laws of another state will be recognized in Florida, but a third party located in Florida that is asked to accept an out-of-state POA can ask for a legal opinion as to the document's validity under the other state's laws.
- Rules governing multiple agents: Under the old law, if two agents were named in a power of attorney to act on behalf of the principal at the same time, they had to act unanimously. If three or more agents were named, a majority vote was required. This changed with the 2011 legislation. The current law provides that multiple agents named to act at the same time can act independently of each other unless the power of attorney specifically states otherwise.
- Divorce triggers revocation of a spouse's authority: The divorce does not have to be final. The mere filing of a petition for divorce terminates the authority of the principal's spouse to act under the principal's power of attorney.
- Powers of attorney are no longer springing: "Springing" POAs don't go into effect until the principal becomes incapacitated. They are no longer recognized under Florida law. Currently, all powers of attorney are effective immediately upon signing.
Springing powers of attorney signed before October 1, 2011, remain valid, regardless of whether the principal has yet become incapacitated.
- Specific authorities must be granted: This catch-all phrase commonly appeared in older powers of attorney: "In general, to do all other acts, deeds, matters and things whatsoever in or about my estate, property and affairs, whether or not particularly or generally described and any and all other acts, deeds, matters, and things not particularly or generally set forth herein, as fully and effectively to all intents and purposes as the undersigned could do if personally present; and to employ, retain in employment and discharge such persons (both professional and otherwise) as my agent may deem necessary to assist in the performance of any of the foregoing." This provision can no longer be relied upon. A power of attorney must list with specificity the authority or authorities being granted.
- An agent has a duty to preserve the principal's estate plan: Under the current law, an agent acting under a power of attorney has a mandatory duty to try to preserve the principal's estate planning goals to the extent that they're known to the agent.
These are some significant changes with far-reaching implications. If you've granted someone power of attorney or you're considering doing so, consult with a Florida estate planning attorney. You can also read the entire content of the new law here: F.S. Chapter 709, Powers of Attorney and Similar Instruments, Part II, Powers of Attorney.
NOTE: State laws change frequently and this information may not reflect recent changes. Please consult with an attorney for current legal advice. The information contained in this article is not legal advice and is not a substitute for legal advice.