The purpose of a durable power of attorney (DPOA) is to provide the least restrictive alternative to having someone act on your behalf to make health care and financial decisions. The current DPOA statute (which can be found at Florida Statute Section 709.01 through 709.11) is not very long and does not provide a lot of clear guidance as to the principal’s (person who signs the POA) rights and the agent’s (person who the principal names as their agent to make decisions for them) responsibilities. There are also no remedies for detecting and dealing with abuses which has been a very big concern.
The new DPOA statute (which will be effective on October 1, 2011 and can be found at Florida Statute Section 709.2101 through 709.2402) has many changes and will apply to all durable powers of attorney, regardless of when they were created. The good news is that old POA’s (those signed before 10/1/11) are NOT invalid, so long as they were valid before the new statute came into effect. In other words, if your power of attorney was signed in front of two witnesses and a notary, then it should be valid after 10/1/11.
One significant change is the fact that “springing” powers of attorney (those that do not take effect until two doctors certify that you are incapacitated) are abolished. However, if you have one that was signed before 10/1/11, it will still be valid.
Another piece of good news is that is that those POA’s that were signed in another state are valid in Florida so long as they were valid in the state in which they came. In other words, if you moved here from Ohio, and have an Ohio POA, so long as you complied with the laws of the state of Ohio and the POA is valid there, it will be valid in Florida. That is not to say that you will not have problems using it in Florida. For instance, if you are trying to sell real estate, a POA from Ohio will not work because in Ohio, they only require that POA’s be notarized whereas, in Florida, in order to sell real estate, the POA must be signed in front of two witnesses AND a notary.
Please check back often for additional updates to Florida Laws affecting estate planning and powers of attorney.
This post is designed to provide the most relevant changes (but not all changes are discussed herein). If you have questions about your DPOA, you should seek the advice of an attorney.
To learn more about Florida Elder Law, Medicaid Laws, and issues affecting seniors, please contact the Law Offices of Laurie Ohall.
Hi Laurie; this is good information. just to make sure..I purchased a home in FLA and I have Durable Power of Attorney for my daughter to act on my behalf to sign docs for the bank. I have it notarized by the U.S Embassy here in Ottawa. I have only one witness. Can the notary act as the 2nd witness as I signed in front of him and so did my witness? thank you.
As long at the notary is not notarizing the witness’ signatures, the notary can act as the second witness. On DPOA’s, it is acceptable for the notary to be one of the witnesses because usually the notary is only notarizing the Principal’s signature.
Who qualifies as a legitimate witness in Florida? Do notaries provide witnesses with their services? I going to sign a durable power of attorney in Florida and my mother’s friends are all dead and I am not from the area. Who should we use as witnesses? We are in zip code 34668.
Thank you and the article you provide is very useful.
A notary can sometimes also act as a witness depending on whether the notary has to also notarize the signatures of the witnesses. A notary cannot notarize their own signature. For instance, with a Will, there must be two witnesses, and the notary notarizes their signatures, as well as the testator’s signature (so the notary cannot be a witness). However, with a Durable Power of Attorney, the witness’ signatures are not notarized (only the person creating the DPOA has to have their signature notarized), so a notary can act as one of the witnesses. Anyone who is over the age of 18 can act as a witness, however, they should not be related by blood to you, nor should they be the agent or beneficiary (if it is a Will).
My father, who is 90, is considering giving me power of attorney and was wondering if he can override my decisions should he want or do I have final say so? I am also going to be named for my mother and was wondering if that also gives me final say so over him as her spouse? Thank you!