Attention Florida Residents: Change in Power of Attorney Law
Posted on: October 2nd, 2011
By: Mary Merrell Bailey, Esq. CPA MBA MSTax MSAcctg
Just when you thought you had your estate planning documents in order, there sneaks up a drastic change in the power of attorney law. A durable power of attorney is a legal document that gives someone the authority to act on your behalf. You are the principal and the person you appoint is the agent. Effective October 1, 2011, the new law comes into effect in Florida. The most pressing question is whether your “old” or existing document is still valid and the answer is yes.
However, we cannot predict how long financial institutions or third parties will honor these “old” documents. We do not want our clients to be inconvenienced in this situation, so we are encouraging them to execute new instruments. Some of the changes in the law are that co-agents can exercise authority independently, unless the power of attorney provides otherwise, and copies in lieu of original documents are acceptable. The old law was silent on the issue of copies in lieu of originals and on many other points.
One of the key purposes of the Florida Power of Attorney Act is to clarify the agent’s authority as it might affect the principal’s estate plan. The principal must specifically acknowledge in the document if the agent has authority to make changes to the principal’s estate plan, change rights of survivorship, beneficiary designations, waive rights under annuities and retirement plans, and make gifts. These are called the superpowers. This list is by no means exhaustive, but gives you an idea of the changes. The purpose of these changes is to protect the principal and to clarify what previously was not in the statute.
This change in the law is long overdue as the last overhaul of this statute was in 1995. I know it can be dull stuff, and not on the pop culture radar in Florida, but go see your estate planning attorney to learn all about it. This important instrument can be used for convenience in a variety of situations, but most significantly, it can keep you out of guardianship court.