Effective October 1, 2011

New legislation makes major changes in powers of attorney that are executed on or after October 1, 2011.  Powers of attorney that were signed before this date will still be valid.

Important Changes for Powers of Attorney signed after 10/1/11

  • Springing Powers of Attorney are not effective.

A springing power of attorney is one which does not become effective until the principal loses capacity.  Spring powers of attorney signed before 10/1/11 will still be valid.  After 10/1/11 all powers of attorney will be effective upon signing.

  • Copies are as effective as the original.
  • Compensation of the agent.

A “professional” agent, one who serves as agent for 3 or more people at a time cannot be compensated for their services.

  • Powers granted to the agent must be specified.  General statements are worthless.

The law has no “default” powers.  Agents may perform only those acts that are specifically enumerated in the power of attorney.

  • Banking powers

A wide array of powers to handle common banking transactions can be granted by using this specific language from the statute, stating that the agent has “authority to conduct banking transactions as provided in section 709.2208(1), Florida Statutes.”  Using this specific language grants the following powers:

1)  Establish, continue, modify, or terminate an account or other banking arrangement with a financial institution.

2)  Contract for services available from a financial institution, including renting a safe deposit box or vault space.

3)  Withdraw, by check, order, electronic funds transfer, or otherwise, money or property of the principal deposited with or left in the custody of a financial institution.

4)  Receive statements of account, vouchers, notices, and similar documents from a financial institution and act with respect to them.

5)  Purchase cashiers checks, official checks, counter checks, bank drafts, money orders and similar instruments.

6)  Endorse and negotiate checks, cashiers checks, official checks, drafts, and other negotiable paper of the principal or payable to the principal or the principal’s order, transfer money, receive the cash or other proceeds ofthose transactions, and accept a draft drawn by a person upon the principal and pay it when due.

7)  Apply for, receive, and use debit cards, electronic transation authorizations, and traveler’s checks from a financial institution.

8)  Use, charge, or draw upon any line of credit, credit card, or other credit established by the principal with a financial institution.

9)  Consent to an extension of the time of payment with respect to commercial paper or a financial transaction with a financial institution.

NOT included in that incorporation language, is the authority to:

1)  Enter an existing safe deposit box,
2)  Name or change a beneficiary designation on an account.

These powers would have to be specifically added to the documents.

  • Investment Transactions

Similar to the banking transaction provisions, specific language from the statute can be used to “incorporate” the power to conduct common types of investment transactions.

NOT included in the list of transactions authorized is to designate a beneficiary on an IRA.  That power would have to be specifically stated.

“Superpowers” Require Additional Execution Requirements

Because of the potential for abuse, the new law refers to them as “superpowers” and requires the principal to sign or initial by each one that is intended to be granted.  Superpowers include:

1) Create an inter vivos trust, including a Qualified Income Trust,
2) Amend, modify, revoke or terminate a trust created by or on behalf of the principal,
3) Make a gift,
4) Create or change rights of survivorship,
5) Create or change a beneficiary designation,
6) Waive the principal’s right to be a beneficiary of a joint and survivor annuity, including a survivor benefit under a retirement plan; or
7) Disclaim property and powers of appointment.

  • Gifting is Prohibited Unless Specifically Authorized in the Power of Attorney

Elder Law Firm of Clements & Wallace, P.L.
310 East Main Street
Lakeland, Florida   33801