Effective October 1, 2011, a new power of attorney law took effect in the State of Florida. Although the law makes many changes to existing law, some of the more significant are described below.
One major change it will make to prior law will be to prohibit "springing" powers of attorney, i.e. powers of attorney that take effect only upon incapacity. Springing powers of attorney executed before the effective date will still be valid, but all powers of attorney executed on and after that date must be effective immediately.
A practical effect of this law will be to make living trusts even more useful to avoid guardianship. For people who are uncomfortable giving someone immediate fiduciary power over their assets, the only alternative to a guardianship of the property in the event of incapacity will now be a living trust, in which a successor trustee can be appointed to take over management of the person's assets only upon incapacity or death. Also, even though springing powers executed before the new law are still technically valid, the new law may have the practical effect of making them harder to use.
The new law also makes it clear that powers of attorney will confer on the agent only such powers as are specifically described in the power. Thus, a power of attorney simply granting to an agent “full power and authority to exercise or perform any act, power, duty, right or obligation whatsoever that I may now have or may hereafter acquire” will not be effective. Although even before the new law the effectiveness of such broad language was questionable, existing powers of attorney that do rely on such language will now clearly be meaningless.
Another significant change the new law makes is to enable a third party to whom the power is presented (such as a bank or other financial institution) to request an opinion of counsel, at the principal’s expense, if there is a legitimate question regarding the validity or interpretation of the power. Because the new law also sets forth how various specific powers can be described in powers of attorney signed on and after the effective date, old powers of attorney that do not describe those powers in the same manner could be subject to interpretation issues that might cause the third party to request such an opinion of counsel and thereby cause the principal to incur unnecessary costs.
Thus, even though powers of attorney signed before the effective date are still valid, it is advisable to have a new power of attorney that complies with the new law.
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