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New Durable Power of Attorney Law By Raymond L. Parri, Esq. Reprinted October 1995 As of October 1, 1995, major changes have been made to Florida's durable power of attorney. Just to refresh your memory, a durable power of attorney is a document that allows another person to act on your behalf, to handle your business affairs. The word "durable" is important here, just as the word durable implies, it allows this other person to act on your behalf regardless of your mental or physical condition. The person whom you appoint in the durable power of attorney is called your attorney-in-fact. Here are some of the changes: 1. Expands the authority of the attorney-in-fact to act without court approval. 2. Specifies what the attorney-in-fact cannot do for the principal; i.e., cannot vote, perform personal duties, make an affidavit, etc. 3. Provides a standard of care for the attorney-in-fact similar to that of a trustee. 4. Authorizes multiple attorneys-in-fact and establishes rules as to their joint act. 5. Limits the authority of the attorney-in-fact to deal with trusts and gifts unless otherwise permitted in an individual's durable power of attorney. 6. Provides that if a lawsuit is brought against a third party for the unreasonable refusal to allow an attorney-in-fact to act or challenges the proper exercise of authority by an attorney-in-fact, the prevailing party is entitled to damages and costs, including reasonable attorney fees. To overcome the objections of a third party, the new law permits the attorney-in-fact to execute an affidavit stating that there has been no revocation, partial or complete termination, or suspension of the durable power of attorney at the time it is exercised. According to this new law, the only way to take advantage of these provisions is have a durable power of attorney executed after October 1, 1995. Although there are a few inconsistencies in the law, the consensus of opinion is to execute a new document if possible. According to Circuit Court Judge Thomas E. Penick, Jr., the inconsistencies will probably be taken care of in a "glitch" bill in the next meeting of the legislature. Remember, to serve as an attorney-in-fact, the person must be 18 years of age or older and of sound mind. If a financial institution is used, it must have a place of business in this state and authorized to conduct trust business in this state. Selecting an attorney-in-fact is a very important decision, you want to be sure the person selected is not only trustworthy but also intellectually capable of handling business matters. As many of you know, I have clients name two or three people. This is a safety net, in case the first person named is unable to serve for whatever reason, a backup person is already named. As a courtesy to our current clients, we will prepare this new form durable power of attorney at a discounted fee. -
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Copyright © 2002 Law Firm of Raymond L. Parri, P.A., All rights reserved.
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