How Did Durable Power Of Attorney Work In Florida Prior To October 2011?
In Florida, the law involving durable power of attorney vastly changed on October 1st, 2011. What was a very simple law became a very complex law. The reason why this change is relevant and important to note is that practitioners, software companies, and other providers of durable power of attorney forms for use in Florida, are still not up-to-date as to the changes in this law. Prior to October 1st, 2011, establishing a durable power of attorney was much more simplified. Prior to that date, other than a few provisions regarding real estate sale and creation of trusts, the power of attorney basically stated, “The person I have named as agent under this power of attorney can do absolutely anything that I could do myself financially.” That was sufficient for the person named in the document to do absolutely everything financially on behalf of the person signing the durable power of attorney.
That original durable power of attorney was a two to four-page document that worked, and it was accepted wherever it was used. After October 1st, 2011, the four-page durable power of attorney became a 15-page power of attorney. So, what was the big change? Under the new law in 2011, the durable power of attorney’s required to be much more specific about what your agent under the durable power of attorney could do. In other words, if the document is signed after October 1st, 2011, and it doesn’t specifically say, “My agent can deposit a check with this citation to the statute,” then the agent cannot deposit a check using the durable power of attorney. Therefore, the requirements must be detailed. Practitioners now have to take a basic one-sentence catchall provision and think of every conceivable action that a person would need to take on behalf of another person to take care of business. If the language is not in there, and you have a durable power of attorney that you’re trying to use on behalf of your parent or loved one, that person cannot take action under that legal document. As a result, you might have to either get a new power of attorney or seek guardianship.
A lot of third-parties are using the new durable power of attorney law as a means to deny people the ability to use the durable power of attorney on behalf of their loved one. They’re using it as a sword to say no. Again, durable powers of attorney that were created and signed prior to October 1st, 2011, had a much simpler process. The former law was only a couple of pages in the statute book compared to the new law, which is much more expanded and detailed. The main reason the change was done, was for the sake of protecting the elderly and consumers. People were using blanket durable powers of attorney to steal from elderly people, and so, in response, the law became much more complex. Unfortunately, third-parties are overusing it to reject viable attorney-made durable powers of attorney.
What Does The Florida Durable Power Of Attorney Act Say After 2011?
In Florida, the law for durable powers of attorney signed after October 1st, 2011 is much more detailed than the prior law. The biggest examples can be found within banks and other financial institutions. Many of these institutions are requiring the specific statute that was created at the time to be cited within the document itself. Most online durable power of attorney companies do not have this citation. Consequently, local banks will occasionally reject durable power of attorney language on the basis that the specific citations to the banking and financial institution provisions of the durable power of attorney statute are not cited.
The next change, in regard to the durable power of attorney statute, is that there are specific actions that require initials next to provisions that give your agent the authorization to take those actions. For example, if you want your agent to legally continue your ties to your church, then you need a provision saying that your agent can gift, and you need to initial that provision. If you don’t have that in your durable power of attorney, then a beneficiary could later challenge that you did not have the authority to make gifts. They can claim that you improperly exercised or exceeded the authority given to you, and therefore, as the agent, you have to personally repay the estate. That’s a problem.
Other common initialing provisions that are required include the power to create a trust, the power to create beneficiary designations or joint ownership, and the power to gift. The third major change that occurred on the durable power of attorney law is the inability to make durable powers of attorney effective upon incapacity. This is known as springing power of attorney. The language in durable powers of attorney dated after October 2011 instructs that a power of attorney cannot say that this becomes effective unless there is proof of incapacity. That means that a durable power of attorney signed after October 2011 is effective immediately upon signing the document.
The durable power of attorney law also changed with how disagreement is handled between the agent presenting the durable power of attorney to a financial institution and the financial institution that’s protected from liability. There is a set process on how to address a situation when a financial institution does not accept the durable power of attorney. There is a clear process, and the family trying to get a power of attorney passed has a quick timeline and the right to sue a party for wrongly denying a durable power of attorney. That party can also pay for attorney’s fees and court costs associated with the lawsuit. Finally, as previously mentioned, the major change is that there needs to be a greater deal of specificity on the actions that your agent under the durable power of attorney can take on your behalf.
For more information on Durable Power Of Attorney, an initial consultation is your next best step. Get the information and legal answers you’re seeking by calling (904) 398-6100 today.
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