The Blatt Watch by Peter Blatt: Durable Power of Attorney Change of Law

From the desk of Peter Blatt

September 4, 2012

Durable Power of Attorney Change of Law:  If you have not updated or created a new durable power of attorney since October 2011 in Florida you need to act as soon as possible. Your old power of attorney may not work!

If you become disabled, who will help you maintain your lifestyle? You need a Durable Power Attorney!

The Durable Power of Attorney statute has been completely modified/ revamped in October 2011.

The Durable Power of Attorney is an important part of planning for incapacity as it ensures someone can handle an incapacitated person's assets without the need to create a guardianship.  The recent enactment of the new "Florida Power of Attorney Act" ( Fla. Stat. §§709.2101-.2402) added some additional restrictions and clarifications to the use of power of attorney, and now requires careful consideration, and express authorization, of specific powers being granted. These additional powers have been dubbed the “Super Powers” that you give your agent.

An aside. I was sitting in my home on a weekend (the end of 2011) rewriting my durable power of attorney form. It was late on a Sunday afternoon and my younger son (8 years old) must of heard me muttering to myself with frustration over the silliness of the longer Florida statute. The conversation went something like this:

Peter: Stupid superpowers and the new statute has made my simple 4 page form (Durable Power of Attorney) into a long 12 page form.. mutterings…

Son: Dad, don’t worry (yes he is a realistic, positive 8 year old boy who loves to fish), I have a question for you.

Peter: … (looking up from my forms and the computer after working over 12 hours on the new form) Yes!?!

Son: Which superpower would you rather have, the ability to be invisible for 6 seconds or to fly 6 inches off the ground?

Peter: … (what! He must of heard me mention the new super powers in the form required by statute) I don’t know… how about an extra 6 feet of pointer finger so I can poke you!

Son: Hmmm.

A Durable Power of Attorney is a statutorily enhanced agency agreement by which a principal (you) designates an agent to act for him or her in a limited or general capacity.  The Durable Power of Attorney must be in writing and executed with the same formalities required for the conveyance of real property, (Fla. Stat. §709.2105(2)).  A power of attorney executed in another state may be valid in Florida if valid where executed.  Fla. Stat. 709.2106.(3).  To be effective as a Durable Power of Attorney, the instrument must contain specific language evidencing that it is intended to remain effective despite the principal's incapacity (Fla. Stat. §709.2104).  A Durable Power of Attorney was always exercisable by the attorney-in-fact immediately upon its execution, and that fact is now codified as Fla. Stat. §709.2108(1); previously Florida recognized "springing" powers, i.e., those conditioned upon the principal's lack of capacity, but such contingent powers are prohibited for powers executed after October 1, 2011 (Fla. Stat. §709.2108(2) and (3)), excluding a military power of attorney which is deployment-contingent (Fla. Stat. §709.2108(4)).  Those who may serve as an attorney-in-fact (under Fla. Stat. §709.2105) are:

* Any natural person who is 18 years or older;

* A financial institution with trust powers, that has a place of business in Florida and that is authorized to conduct trust business in Florida.

Photocopies of a power of attorney may now be used Fla. Stat. 709.2106(5).

It is a good idea to review your estate plan and your durable power of attorney.

Peter Blatt, J.D., LL.M., Blatt Legal, PLC, has a broad breadth of knowledge regarding investments and the economy. Peter frequently lectures on topics such as investments, conservative income, and tax planning. He has written many articles and has started sending out some of his more favorite thoughts to his most trusted clients and other professionals.   If you would like to meet with Peter, he will be happy to have a meeting to discuss how our firm can help you preserve your wealth.

Until next time,

Peter Blatt