Florida has enacted new legislation governing a durable power of attorney effective October 1, 2011.

A durable power of attorney permits your agent or “attorney in fact” of your choice to sign your name and handle your day-to-day business in your place. Prior to October 1, 2011, you (the principal) could choose between an “immediate” power of attorney (where your agent could use the instrument immediately upon your signing of the document) and a “springing” power of attorney (where your agent could only use the instrument upon your incapacity).

As of October 1, 2011, powers of attorney are no longer allowed to “spring” into action. Springing powers of attorney are no longer allowed to be created in Florida. Rather, all new powers of attorney must be effective immediately (except for certain military powers of attorney).

Some of the other changes to the durable power of attorney are as follows:

  • A power of attorney must list with specificity the authority being granted and general, global provisions such as those which attempt to grant the agent authority to do all acts the principal can do are no longer effective;
  • There are certain superpowers that require the principal to sign or initial next to each specific grant of authority to be effective;
  • The new law also affects how your agent is paid and reimbursed for expenses related to the performance of their duties;
  • A third party such as a bank must accept or reject the presented power of attorney within a specified period of time;
  • The new law provides for damages, including attorney’s fees and costs, against a third party who refuses to accept the new power of attorney that is in proper form and properly executed;
  • The agent now has a duty to preserve the principal’s (your) estate plan;
  • The agent now has an affirmative duty to take reasonably appropriate action to safeguard the principal’s (your) best interests;
  • There are certain acts that your agent is now precluded from performing;
  • There are certain requirements for the principal to properly revoke a prior instrument;
  • The new statute more specifically defines the role of the courts in proceedings relating to powers of attorneys. In particular, a court is now empowered to construe or enforce a power of attorney, review the agent’s conduct, terminate the agent’s authority, and remove the agent.