Last time, I talked about some of the more relevant changes to the DPOA statute such as doing away with “springing” POA’s and how POA’s signed before the new statute is enacted (which is on 10/1/11) will be treated. Some other changes to the statute include the change of how a party is identified. Old Powers Of Attorney will refer to the “attorney-in-fact” which is the person to whom you give the power to handle your financial matters. Under the new statute, that person will now be referred to as the “agent”.
Interestingly, the new statute establishes a presumption that, if you appoint co-agents to act on your behalf, they may each act independently unless otherwise stated. Therefore, if you want both of them to agree on everything that they do for you (or a majority if you appoint more than two), you will need to specifically say that in the power of attorney document.
The new statute also provides definitions that are left out of the old statute, such as who can be an “agent”, when someone has “notice” (including when a financial institution is on notice that the POA is being used), etc. The statute clearly lays out when a POA is terminated, revoked or suspended (and this usually involves the death of the principal – the person who created the POA – or the death or incapacity of the agent).
There is also a provision that states that, where the principal and agent are married, the agent’s authority is terminated upon the filing of dissolution of marriage or annulment or legal separation. Florida statutes already provides for this with regards to a Last Will and Testament (where provisions of the Will providing for a spouse become void upon dissolution or annulment from the spouse).
Some other additions to the new POA statute include establishing liability for co-agents or successor agents if they fail to protect the principal’s best interest (and if there is actual knowledge ), compensation of agents and who may be compensated, and the duties of an agent (including the duty to use good faith) when acting on the principal’s behalf.
These are just some of the changes and enhancements to the new DPOA statute. If you have questions about your particular planning documents, or how the statute may affect you, you should seek the advice of a Florida estate planning attorney.