Florida Enacts New POA Act

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The recently enacted Florida Power of Attorney Act (the “New Act”) is getting a lot of  attention both in Florida and nationwide because of the number of transitional residents who reside in Florida for part of the year.  These individuals will often have a Power of Attorney (“POA”) drafted to comply with Florida law in the event they might need to use a POA while they are in Florida.  Because of this New Act, it is more important than ever to have your Florida POA reviewed.

 

The New Act provides for some significant changes to POA’s signed after September 30, 2011.

 

qThe agent under the POA will not be allowed to act unless the power is specifically enumerated in the POA.

qCertain powers specifically set forth in the POA must be separately signed or initialed by the principal to accept each power.

qThe use of a “springing” POA, in which the POA will not become effective until the principal becomes incapacitated, will not be permitted if signed after September 10, 2011.

qThe POA must now be signed in the presence of two witnesses and a notary.  However, one of the witnesses may be the notary.

 

The use of an out-of-state POA in Florida is permitted as long as it has been properly executed under the other state’s laws. However, its use will be subject to the New Act and other state laws, which could affect the use of certain powers.  In addition, the named agent may only act as authorized by Florida law and as set forth in the specific terms of the POA.

 

A third party, such as a bank or a medical facility, intending to rely on an out-of-state POA may request an opinion of counsel that the POA has been properly executed in accordance with the laws of the state where the POA was drafted. 

 

Note that a preexisting Florida POA drafted prior to October 1, 2011, is “grandfathered” and not subject to the New Act’s terms. 

 

For more information on how to keep the peace in your estate planning documents, please contact Reager & Adler at 717-763-1383.

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