On October 1, 2011, the new Florida Power of Attorney Act went into effect.  This new law replaces the “old” law and applies to powers of attorney created before or after that date.  As a reminder, power of attorney allows an individual (called a principal) to delegate to an agent (or attorney-in-fact) the authority to act on his or her behalf.

Some of the changes in the law include:

1.         Springing powers of attorney are not longer permitted to be created with the exception for military powers. These types of powers of attorney become effective only upon the happening of a certain event, such as incapacity. Springing powers of attorney created before October 1, 2011 continue to remain valid.

As an alternative to the springing power of attorney, a durable power of attorney with an escrow agreement could be used. By naming someone, such as your attorney, to hold any estate plan document, including a part of attorney, that escrow agent can deliver that document upon the happening of an event, such as credible evidence of incapacity.

2.         The filing of divorce triggers revocation of a spouse’s authority to act under a power of attorney.  Previously, a power of attorney needed to use the specifically revoked when parties divorced.

While executing a revocation is no longer necessary, prudence suggests the continued used of formal revocations as a protective measure.  Furthermore, a revocation can be recorded in the public record so as to provide a form of notice to third parties of the revocation.

3.         Often, a client would wish to name multiple agents to act on his or her behalf. Under the old law, if multiple agents were named, they were required to act by majority unless the power of attorney stated otherwise. The new law provides that multiple agents named to act at the same time can act independently unless the power of attorney specifies otherwise.

We suggest that clients who wish to name multiple agents always specify if those agents must work together or if they can work individually.  Often, it is beneficial to name one individual to act so that conflicts will not arise.

4.         A general grant of authority under “old” powers of attorney will no longer be effective. Rather, the power of attorney must specifically list the authority be granted, such as the power to buy and sell securities or access a safe deposit box.

If you have a specific authority that you wish to grant upon an agent, such as the power to sell your home, you can do so with a special or limited power of attorney.  These powers of attorney allow for a limited action by your agent, and once completed, will terminate on their own.

Fortunately, an “old” durable power of attorney drawn by our office is not negatively affected by this new law and will remain beneficial for you and your family. Of course, this law change reminds us that a periodic review of your estate planning documents is critical to make certain that your wishes are honored in a timely and efficient manner.