Business and Tax Lawyer Blog

“New Rules” applicable to a Florida Power of Attorney are effective on October 1, 2011 - - so what happens to Powers of Attorney executed BEFORE October 1, 2011? Florida Statute 709.2106 states that the older Power of Attorney will be effective if its execution complied with Florida Laws at the time of execution.

If the Power of Attorney was executed in another State prior to October 1, 2011, then it may be considered to be valid within Florida if the document was executed in compliance with the requirements of the other state - - However, there could be some additional cost associated with the use of such a ”foreign” Power of Attorney. Anyone requested to act under the authority of the Power of Attorney’s designated Agent may require a formal Opinion of Counsel as to “any matter of law concerning the Power of Attorney,” and the Opinion Letter will be provided “at the principal’s expense.” There may be further developments as to the scope and complexity of the “Opinion of Counsel” which can required under Florida Statute 709.2106(3) – possibly affecting the cost of securing such opinion. Florida Statutes also state that failure to provide the requested Opinion of Counsel may result in no liability for failure to accept the Power of Attorney on the part of the party requesting the Opinion of Counsel.

Continue reading " How Do Changes to Florida’s Power of Attorney Act Affect My “OLD” Power of Attorney " »

Recent changes to the Florida’s Power of Attorney Act go into effect October 1, 2011 and to understand the scope of those changes, we should start with the basics - - the definitions.

We will now refer to the grantor of authority under the Power of Attorney as the “PRINCIPAL.” The recipient of the grant of authority (formerly an “Attorney-in -Fact”) is now referred to as an “”AGENT.”

“DURABLE” (as used in connection with Durable Power of Attorney) refers to a Power of Attorney that “is not terminated by the Principal’s incapacity.” [Florida Statute 709.2102(2)]. So, clearly a key question is - - What is “INCOMPACITY?” This is defined in the statute as “the inability of an individual to take the actions necessary to obtain, administer, and dispose of real or personal property, intangible property, business property, benefits and income.”

Interestingly enough, the term “POWER OF ATTORNEY” is defined in the Statute (as a writing by which a Principal grants authority to the Agent) but the statute implies that a Power of Attorney grant of authority may be created “whether of not the term is used in that writing.”

Continue reading " New Power of Attorney Rules – “A Rose by Any Other Name…” " »

In June 2011, Governor Scott signed into law key changes to Florida Statute 709 covering the form and use of Florida ‘s Durable Family Power of Attorney.

The Durable Power of Attorney has long been an important tool in the war chest of investment and estate planning professionals for clients seeking to protect their assets in the eventuality of the client’s own long-term incapacity. In fact, that’s where the phrase “durable” comes from. A standard Power of Attorney ceases to be enforceable upon the incapacity of the grantor of the Power. As a result, it ceases to function just when it is needed most. A properly executed “Durable” Power of Attorney, however, survives the physical or mental incapacity of the grantor – providing the grantor’s “Agent” the authority to act on their behalf. Florida’s “new rules” as to the Durable Family Power of Attorney go into effect October 1, 2011.

Continue reading " “New Rules” for the Florida Durable Family Power of Attorney " »