On May 4, 2011, the Florida Legislature passed Senate Bill 670, which revises the power of attorney statute, Florida Statutes Chapter 709. Effective, as of October 1, 2011, power of attorneys will be subject to new rules. A power of attorney is a written instrument to which an individual (the “principal”) grants power to another (the “agent”) to act on behalf of the principal. Florida recently revised its power of attorney statute to more closely conform to the Uniform Power of Attorney Act enacted by many other states. After October 1, 2011 (the “Effective Date), the following rules will apply to any powers of attorney executed in Florida.
Execution Requirements. A Power of Attorney must be executed by the principal and two subscribing witnesses, and be acknowledged by the principal before a notary public.
Elimination of Springing Powers. Springing power of attorneys are no longer permitted if they are signed after September 30, 2011.
Co-Agents. Under the prior law, if two people were named in a Power of Attorney, concurrence of both agents were required to act. Conversely after the Effective Date, any time there is more than one agent, each agent may exercise the power independently unless the power of attorney indicates otherwise.
Revocation. Executing a new power of attorney will not revoke a previous power of attorney unless it specifically states that it does.
Specified Powers of Agent. Under the new law, each agent must be specified specific duties under a Power of Attorney. No longer can a drafter be generic by giving the agent all powers of the principal. In addition, certain specific powers in a power of attorney must also be specifically signed or initialed next to each enumerated power to be effective. Examples of these specific powers that must be signed or initialed include:
- creating an intervivos trust;
- amend, modify, revoke or terminate any trust created by or on behalf of the principal (provided the trust provides for amendment, modification, revocation or termination);
- to make gifts (annual gift tax exclusion amount unless trust specifies otherwise);
- create or change survivorship rights;
- create or change beneficiary designations;
- waive a principals right to be a beneficiary of a joint and survivor annuity, including survivor benefit under a retirement plan;
- disclaim property and powers of appointment.
Specified Powers Prohibited. Agents are specifically precluded from performing the following acts under a power of attorney:
- to perform duties under contract that require personal services of the principal;
- to make any affidavit as to the personal knowledge of the principal;
- to vote in any public election on behalf of the principal;
- to execute or revoke any will or codicil for the principal; or
- to exercise powers and authority granted to the principal as trustee or as court-appointed fiduciary.
In addition, if an agent is not an ancestor, spouse or descendant of the principal, such agent cannot exercise any authority or grant an interest in the principal’s property to an agent or to an individual to whom the agent owes a legal obligation of support, unless the instrument states otherwise. Furthermore, the agent’s ability to make gifts is limited to the annual exclusion amount unless the instrument provides otherwise.
