by Grant W. Kehres* | Posted 11/03/2011
Effective October 1, 2011, the Florida legislature created the Florida Power of Attorney Act which established requirements for creating powers of attorney. Unless the new requirements are met, a power of attorney will be useless. Master these concepts and you will have a good handle on the new Act:
- Powers of attorneys executed prior to October 1, 2011, if valid at the time of their execution, will remain valid after October 1, 2011.
- The Act applies to all powers, both durable and nondurable, except military powers of attorney and proxies.
- Powers executed after the effective date of the Act must be signed by the principal and by two subscribing witnesses and be acknowledged by the principal before a notary public.
- A power of attorney is suspended when a petition to determine the capacity of the principal has been filed; but the suspension is not effective if the agent acts in good faith and without knowledge of the suspension.
- A power of attorney is terminated when
a) the purposes for the power is accomplished, or
b) upon a date specified in the power of attorney, or
c) if the principal revokes it or dies, or
d) if a power is not durable, when the principal loses capacity, or
e) if a power is durable, upon an adjudication of incapacity, or
f) when the agent’s authority terminates and the power does not provide for an alternate agent.
- Springing powers are no longer authorized after the effective date of the Act, but those in existence prior to the effective date will continue to be recognized.
- Photocopies or electronically transmitted copies of an original power of attorney have the same effect as the original, but an original may still be required for public record recording on real estate transactions.
- An agent may not
a) perform duties under a contract that requires personal services of the principal,
b) make an affidavit as to the principal’s personal knowledge,
c) vote on behalf of the principal in a public election,
d) execute or revoke the principal’s will or codicil; or
e) exercise powers or authority held by the principal in a fiduciary capacity.This last restriction is very important. It is very common for an agent holding a durable power of attorney to believe that he or she has authority to manage or transfer assets titled to the principal’s revocable trust. Only the acting trustee of the trust has authority over the trust assets, who may not necessarily be the agent.
- Certain banking and investment powers may be incorporated by reference. The banking powers are found in Section 709.2208(1), Florida Statues. The investment powers are found in Section 709.2208(2), Florida Statutes.
- The power to create, amend, modify or revoke any document or other disposition effective at the principal’s death or transfer assets to an existing trust created by the principal are considered “superpowers” and must be specifically authorized by the power of attorney, and the principal must sign or initial next to each specific enumeration of the authority.
Although the new Act has the greatest impact on estate planning, many of its provisions can be a trap that might otherwise hinder a successful real estate transaction or result in a title that is defective or uninsurable. I am happy to review your power of attorney before your real estate transaction or draft you a new one that qualifies under the Act.
Our office is committed to providing our clients and the real estate agents that work with us the assistance and experience needed to help them safely close their real estate transactions. For your real estate closing needs, we invite you to tap into our 34 years of Florida real estate law knowledge and experience.
*Grant Kehres is Board Certified by the Florida Bar Board of Legal Specialization as a Real Estate Law Specialist. He holds a doctorate in jurisprudence from Vanderbilt University, an MBA (finance) from Babson College and a dual undergraduate degree in investments and economics from Babson College. Admitted to The Florida Bar in 1978, he has handled nearly 10,000 closings for more than 6,000 clients. For more information on our services and what distinguishes our office from other law firms and title companies, call (561) 392-5200.