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The New Florida Durable Power of Attorney statute

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Among the new laws which the Florida legislature passed this session were substantial changes to the Durable Power of Attorney Statute.  A durable power of attorney (DPOA) is a document in which you appoint someone to legally act on your behalf.  Essentially, your agent steps into your shoes to handle your affairs.  Currently, DPOA’s can take effect immediately or they can be “springing” meaning they do not take effect until the person becomes incapacitated.

The DPOA statute has not undergone such substantial changes since 2005, and this year’s changes are significant.  The new changes will take effect on October 1, 2011.  The good news is that DPOA’s that were valid under Florida law before the effective date will remain valid.  DPOA’s signed after the effective date, may not be “springing” anymore, meaning it takes effect immediately once signed (and not when you become incapacitated).  The new law also requires written notice with special notice for financial institutions.  The statute will require the individual signing the DPOA to specifically initial certain powers if they want their agent to be able to use those powers (such as the power to make gifts, the power to qualify for public benefits, trust powers (creating, amending revoking, etc), the power to change or create rights of survivorship or beneficiary designations, the powers to waive beneficiary rights in annuities and retirement plans and the power to disclaim property and powers of appointment).  You can also no longer have a blanket POA that grants powers to agents.

The DPOA statute also give banks the power to make you obtain a legal opinion that your POA is legally effective and it also gives the bank time to review POA’s to determine if they will accept them.  This is especially troubling for snowbirds or those who have just moved here from another state.

If you have questions about your current power of attorney (or if you have had any major life changes in the last 3 to 5 years), you should consult an attorney to help you determine if you need to update your POA.

As your family circumstances change, contact trusted Tampa Florida area attorney, Laurie Ohall, to establish the necessary documents for your family’s health and financial protection.


Laurie Ohall

Laurie Ohall is a Florida Board Certified Elder Law Attorney based in Brandon (Tampa), Florida. Ms. Ohall is a sought after expert in the area of elder law, probate, estate planning, special needs planning and guardianship. You can find her on twitter at @ohalllaw,  LinkedIn, Facebook , and Google +.

 

37 Comments

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  • Ron

    Ron, There was a change in the Florida Durable Power of Attorney rules effective 10-1-2011 that you may want your attorney to review.

    Vern

  • George Haralson

    I am now POA with a friend that wants to give POA to his previously estranged son. How do I quit the POA, so he can appoint his son?

    • Laurie Ohall

      Powers of attorney, unlike Wills, cannot be amended. In order to change who you want as your agent, you need to expressly revoke the POA (which is either stated in a new power of attorney or in some other writing signed by the Principal – the person signing the POA). I recommend, in addition to signing a new POA, that a separate revocation document also be signed so that this can be mailed to the old agent and any third parties (such as banks) to put them both on notice that the old agent is no longer allowed to serve as agent.

      In some POA’s, the Principal will list more than one agent. If the first agent does not wish to serve (or passes away), the agent can sign an affidavit of resignation to allow the next person in line to serve. In that case, there is no need to execute a new POA.

      If you would like more information, please feel free to call my office and I’d be happy to discuss this with you further (we offer free 15 minute telephone consultations).

  • jay kalish

    My Attorney Daryl Jacobs of Vero Beach called to tell me about the change in the law which I appreciate and suggested we sign a new DPOA. He told us that even though the “Old” DPOA was signed last February and according to the new statue is still OK, he feels it could be challenged. A new one cost $ 175.00 Any Comments

  • mark wilson

    my bestfriend gave me dpoa in 2009 and went to the attorney to tweek it for her son and the attorney changed the dpoa to her neighbor that took her there. what do i do now? iam the only one to protect her from not ending up in a nursing home. she want to die at home.so we went to do a new DPOA and 2 attorneys wont take her as a client,they say she’s too confused.
    help me help my friend her children want to put her away and cash out.

    • Laurie Ohall

      Hi Mark,

      Please feel free to contact me at my office as each case is different and I offer a free phone consultation.

      813-438-8503

      ~Laurie

  • william

    Under the new laws can the agent/DPOA also enter into a Personal Services Contract with the grantor of the DPOA?

    • Laurie Ohall

      Yes, the agent may enter into a PSC with the principal under the new DPOA statute, but in order to do so, the power should be specific and the principal should specifically initial the ability to do so – any power that is going to impact the principal’s existing estate plan should be initialed, whether the statute specifically references it or not.

  • Mario

    Does the Oct. 2011 change to DPOA law allow for drafting a new springing DPOA that only authorizes enumerated powers and only after the principal is unable to conduct their own business affairs? I want to recreate the old form of DPOA.

    How burdensome is it for the agent to prove that the principal is incapacitated? I already have someone that can pay my bills without a POA.

    • Laurie Ohall

      Great Question Mario!

      The new DPOA statute took away the right to have springing powers of attorney (except for military who can have deployment-contingent POA’s). A power of attorney signed after 10/1/11 cannot have the springing power language in it. POA’s that have springing powers and were prepared before 10/1/11 are grandfathered in. Only one licensed physician needs to sign the affidavit that the person lacks capacity to manage property and it needs to be the primary physician that cares for the principal.

  • Mario

    I just received drafts of my will and DPOA from an experienced lawyer. My DPOA does not have any list of enumerated powers for me to initial. I must have it redrafted. Is this form of uninitialed DPOA acceptable?

    My brother and I are both single and are doing wills and DPOA with each other. We trust each other, but do not like giving up control before it is necessary. Our lawyer suggested maintaining physical control of the DPOA document so that the other party would not be able to use it without notice.
    Is there any other way to replicate a “springing” document?

    We are using wills to swap cars and personal property.

    Real estate is being swapped with Life estate warranty deeds. The major assets are titled with beneficiaries, TOD and POD. Pensions and life insurance have beneficiaries.

    Will the executor of my will be able to administer the transfer of the titled assets? If so, can there language to compel performance? Or, must I have a trust?

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  • Kathy Jaco

    My dad owns a condo in Florida. He bought it when my mother was alive, she passed away in 2004 and he has since remarried. He is ill with brain cancer and is now in the hospital with pneumonia. If he passes away, would his condo go to his wife even if the deed does not have her name on it? My brother and I have a Power of Attorney form he signed but not sure if it is a Durable power of attorney. We have no problem if the condo is going to go to his current wife as we have a good relationship with her and everything will be dealt with as it should. We don’t know what needs to be in place to keep the property from going into probate!

    • Laurie Ohall

      If your stepmother’s name is not on the property, then a probate procedure will have to happen at your dad’s death to transfer title to the property. Who gets the property will depend on whether your father has a Will, in which case, he could leave the entire interest in the property to your stepmother, but he cannot leave her less than a 100% interest unless they had a prenuptial or postnuptial agreement. If he had no Will, under Florida law, a probate would need to be opened and your stepmother would be entitled to either a life estate in the property with the remainder interest to you and your siblings, or she can elect to have a ½ interest in the property as tenants in common, with the other half being split between you and your siblings. The election of the ½ interest must be made by the surviving spouse within 6 months of the decedent’s date of death and during the surviving spouse’s lifetime.

      If you are going to try to use the power of attorney to transfer the homestead to your stepmother, you should have it reviewed by an attorney or title company to make sure it has the proper language to allow you to do so.

      • Kathy Jaco

        Ms. Ohall – My dad wants to just add my brothers and myself to the deed to avoid any problems with the property going to probate. How would we do this? He is recovering from pneumonia but is lucid and is concerned about getting this done.

  • kathy dunn

    Ms. Ohall I had DPOA- my sister took my mother to court to find her incompetent. the courts gave my mother a court guardian. They overlooked the DPOA. Is there anything I can do? The guardian has placed my mother over 30miles from me. My mother has fallen 2times was hospitalized both times, 2nd time she broke her hip. she also has fallen out of the bed 3 times that I know of. My mother has asked the guardian time after time to live with me, the guardian ignores her. The guardian has told me she does not determine where my mother lives. My mother has severe osteoporosis, now with all these falls it seems like she can only lift her head to look at me sideways. Just 2 months ago she could lift her head normally. Because my brother and I have brought a few things to the guardian’s attention, it now seems she is retaliating against me
    she now says I can only call my mother 2 times a week and visit 1 time a week. She also said if I cause anymore problems( the problems are asking for a doctor to look at my mother’s eyes when they were oozing I thought she might have an eye infection since she rubs them with her dirty nails that I clean for her once a week. Also asking where are all my mother’s missing items.. the list is very long which includes more than clothing and I am always asking for my mother’s wishes to be granted for her to live with me.
    The guardian did seem like she was going to let my mother live with me once through rehab, now because of all my questions she seems to be trying to get back at me. She has written me 2 very rude emails full of false accusations. I have to the guardian I don’t care if she stays the guardian just let my mother live with me as my mother wants. What can I do ?
    Thanks for your time, Kathy Dunn

    • Laurie Ohall

      Hi Kathy,
      First and foremost, thank you for reading my blog and contacting us. Each case is different and with that said, I recommend you contact my office at (813) 438-8503 and we can discuss the specifics of your case privately. We hope to hear from you soon.

  • Sterling

    Hi Lori I had poa of my mom prior to her passing I live in Florida on one of her policies I was secondary and my grandmother was primary beneficiary I tried to change it to make myself primary due to my grandmothers health failing at the same time of my mothers process of dying the insurance company did not honor my poa and currently other family members have gain poa of my grandmother the insurance company based in Ohio is holding the fund but claims have been put in by the other party the company is asking me to provide Florida statues that state I had the right to change the beneficiary information my poa does not specify it does state everything else except insurance it states I should be treated as of I was my mom and can make decision as if I was her concerning her estate stocks bonds bank accounts enquiries ect… Where would you refer look for information to help me. Sincerely Sterling

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  • Mrs. Mobley

    I have DPOA over my husband who is not disable or mentally ill. However I handle all of his business and needed this document in order to take care of some things for him even though I am his wife.

    Recently he was in court for child support and I was allowed to speak and make decisions on his behalf. He is now in the process of going to mediation to get custody rights for his kids. The mother of his kids refused to have me in the room with my husband, herself and mediator. Mediator didn’t know the rules on how power of attorney works in this case. The kids mother than requested if I have to come in that she wanted to come back with a attorney. So mediation was rescheduled until she finds an attorney.

    Will I be able to go into mediation with them? Does he have to have physical or mental disability for me to act as his power of attorney?

    • Laurie Ohall

      Your husband doesn’t have to have a disability or be incapacitated in order for you to act as his agent under the POA (so long as it is not a springing POA – which are no longer valid under the new law passed on 10/1/2011, except that old ones are grandfathered in). The POA though, has to give you specific power to handle claims and litigation. However, you may want to speak to a family law attorney as to whether there are any rules under the family law statutes that would prevent you from utilizing the POA (I’m not a family law attorney). I’m not aware of whether there is any case law that addresses this specific situation.

  • Bernie

    A family member is formerly a Florida resident and now resides in NY. He still has property and a car in Florida. Do I need a power of attorney in Florida as well as NY where he now resides?

    • Laurie Ohall

      In order to sell real estate in Florida using a durable power of attorney (i.e., you are signing for the family member if the family member cannot sign), it is best to have a Florida power of attorney. Florida requires the power of attorney be signed in front of two witnesses and a notary, and the the POA should specifically authorize for the sale of real estate, including homestead property.

  • Kathy Jones

    This is on behalf of my sister-in-law who lives in Texas. My brother owned a piece of property in Wakulla Springs, FL, but died with no will and this was excluded from the living trust. She would like to sell the property but was told it had to be probated in FL. Can you help with this?

    • Laurie Ohall

      Yes, you are correct, a probate would need to be done in the county where the property is located. I would be happy to speak to you about this – if I cannot help you, I can refer you to someone near Wakulla Springs who may be able to help you.

  • Kim

    My sister has POA over our grandfather and has been his primary care giver for the last 7 years. He is in his final days/weeks. We called hospice in and now we are having problems because the POA does not clearly state for medical purposes. Keep in mind that my sister has been his primary care giver in all aspects for numerous years and has made all decisions. Now that the end is near we are being told that legally she can not make medical decisions that our grandmother has to do it. Yes our grandparents are married but have not lived together in more then 30 years. She has stated that she will not sign the DNR because she does not want to have that guilt on her. My Aunt has left all decisions to my sister but nothing other then the POA is in writing. What can my sister do to carry out his wishes?

    • Laurie Ohall

      I am deeply sorry what you and your sister are going through right now. It sounds like you sister has a financial power of attorney over your grandfather but, for whatever reason, never was appointed (by him) as his healthcare surrogate. At this point, the only thing you can do if his wife is refusing to sign the DNR is an expedited judicial intervention in which you tell the court that the spouse is not following your grandfather’s known desires.

  • carol

    My husband and I had our Wills and Durable Power of Attorney done in April of 2011. We signed them April 27, 2011. Do we have to re-do our DPOA again?

    • Laurie Ohall

      Carol, that is an excellent question. Although your POA’s were done prior to the change in the statute (change occurred on October 1, 2011), it is still considered valid and there is no need to re-do them. That being said, do not be surprised if your agent tries to use the POA and runs into problems with a third party saying they will not accept it, especially in the case of a bank. Unfortunately, not all banks have educated their employees that old POA’s are still acceptable and they may try to tell you they will not accept it. If a bank refuses to accept the POA, the bank must inform you, in writing, why they are rejecting it and they can be subject to liability for damages, including attorneys fees and costs for their unreasonable refusal to accept the POA.

      • carol

        Thank you, This has been very helpful.

      • Nancy

        My husband and I have DPOAs that we signed in 1997. We hold all assets jointly. Is there any need to execute new DPOAs?

        (An elder attorney recently told us that we did need to; do you suppose her definition of “need” is due to your comments above about banks’ possibly rejecting these?)

        Would it just be “foolproof” to execute new docs?

        • Laurie Ohall

          Nancy – when I have a client with a DPOA that is much older, such as yours, I typically see that the DPOA does not have certain Medicaid-planning provisions in it or provisions that would allow your agent to deal with long term care planning issues. This may be why the elder law attorney told you do do a new one. Additionally, I have seen instances where banks are rejecting older DPOA’s (usually because the person at the bank has been told by management to do so), even though I do not believe this is in compliance with the statute. While you can certainly fight this, sometimes clients do not have the time, nor do they have the money to pay an attorney to do so.

          • Nancy

            If there’s ever a need to record this document and I may not have left enough margin at the top of the page to use for that purpose, is that a problem?

  • Nancy

    Laurie, thanks so much for your expertise. We don’t want to leave problems for anyone who has to handle our affairs, so we’ll execute new DPOAs. Many thanks!
    Nancy >

  • Deborah Pelham

    Can adult children get a medical poa for their mother even though she is married? She is alert and mentally stable.

    • Laurie E. Ohall

      Deborah, as long as your mother is mentally competent, she can appoint whomever she wants as her health care surrogate or her agent under a power of attorney. So yes, she can appoint an adult child, rather than her spouse, as her medical POA.

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