The Florida Senate

709.08  Durable power of attorney.--

(1)  CREATION OF DURABLE POWER OF ATTORNEY.--A durable power of attorney is a written power of attorney by which a principal designates another as the principal's attorney in fact. The durable power of attorney must be in writing, must be executed with the same formalities required for the conveyance of real property by Florida law, and must contain the words: "This durable power of attorney is not affected by subsequent incapacity of the principal except as provided in s. 709.08, Florida Statutes"; or similar words that show the principal's intent that the authority conferred is exercisable notwithstanding the principal's subsequent incapacity, except as otherwise provided by this section. The durable power of attorney is exercisable as of the date of execution; however, if the durable power of attorney is conditioned upon the principal's lack of capacity to manage property as defined in s. 744.102(12)(a), the durable power of attorney is exercisable upon the delivery of affidavits in paragraphs (4)(c) and (d) to the third party.

(2)  WHO MAY SERVE AS ATTORNEY IN FACT.--The attorney in fact must be a natural person who is 18 years of age or older and is of sound mind, or a financial institution, as defined in chapter 655, with trust powers, having a place of business in this state and authorized to conduct trust business in this state. A not-for-profit corporation, organized for charitable or religious purposes in this state, which has qualified as a court-appointed guardian prior to January 1, 1996, and which is a tax-exempt organization under 26 U.S.C. s. 501(c)(3), may also act as an attorney in fact. Notwithstanding any contrary clause in the written power of attorney, no assets of the principal may be used for the benefit of the corporate attorney in fact, or its officers or directors.

(3)  EFFECT OF DELEGATION, REVOCATION, OR FILING OF PETITION TO DETERMINE INCAPACITY.--

(a)  A durable power of attorney is nondelegable except as permitted in subparagraph (7)(a)1.

(b)  The attorney in fact may exercise the authority granted under a durable power of attorney until the principal dies, revokes the power, or is adjudicated totally or partially incapacitated by a court of competent jurisdiction, unless the court determines that certain authority granted by the durable power of attorney is to remain exercisable by the attorney in fact.

(c)1.  If any person or entity initiates proceedings in any court of competent jurisdiction to determine the principal's incapacity, the authority granted under the durable power of attorney is suspended until the petition is dismissed or withdrawn. Notice of the petition must be served upon all attorneys in fact named in any power of attorney which is known to the petitioner.

2.  If an emergency arises after initiation of proceedings to determine incapacity and before adjudication regarding the principal's capacity, the attorney in fact may petition the court in which the proceeding is pending for authorization to exercise a power granted under the durable power of attorney. The petition must set forth the nature of the emergency, the property or matter involved, and the power to be exercised by the attorney in fact.

3.  Notwithstanding the provisions of this section, a proceeding to determine incapacity must not affect any authority of the attorney in fact to make health care decisions for the principal, including, but not limited to, those defined in chapter 765, unless otherwise ordered by the court. If the principal has executed a health care advance directive designating a health care surrogate pursuant to chapter 765, the terms of the directive will control if the two documents are in conflict unless the durable power of attorney is later executed and expressly states otherwise.

(4)  PROTECTION WITHOUT NOTICE; GOOD FAITH ACTS; AFFIDAVITS.--

(a)  Any third party may rely upon the authority granted in a durable power of attorney that is not conditioned on the principal's lack of capacity to manage property until the third party has received notice as provided in subsection (5). A third party may, but need not, require the attorney in fact to execute an affidavit pursuant to paragraph (c).

(b)  Any third party may rely upon the authority granted in a durable power of attorney that is conditioned on the principal's lack of capacity to manage property as defined in s. 744.102(12)(a) only after receiving the affidavits provided in paragraphs (c) and (d), and such reliance shall end when the third party has received notice as provided in subsection (5).

(c)  An affidavit executed by the attorney in fact must state where the principal is domiciled, that the principal is not deceased, and that there has been no revocation, partial or complete termination by adjudication of incapacity or by the occurrence of an event referenced in the durable power of attorney, or suspension by initiation of proceedings to determine incapacity or to appoint a guardian of the durable power of attorney at the time the power of attorney is exercised. A written affidavit executed by the attorney in fact under this paragraph may, but need not, be in the following form:


STATE OF_______________
COUNTY OF_______________

Before me, the undersigned authority, personally appeared  (attorney in fact)  ("Affiant"), who swore or affirmed that:

1.  Affiant is the attorney in fact named in the Durable Power of Attorney executed by  (principal)  ("Principal") on  (date) .

2.  This Durable Power of Attorney is currently exercisable by Affiant. The principal is domiciled in  (insert name of state, territory, or foreign country) .

3.  To the best of the Affiant's knowledge after diligent search and inquiry:

a.  The Principal is not deceased; and

b.  There has been no revocation, partial or complete termination by adjudication of incapacity or by the occurrence of an event referenced in the durable power of attorney, or suspension by initiation of proceedings to determine incapacity or to appoint a guardian.

4.  Affiant agrees not to exercise any powers granted by the Durable Power of Attorney if Affiant attains knowledge that it has been revoked, partially or completely terminated, suspended, or is no longer valid because of the death or adjudication of incapacity of the Principal.

____________________

 (Affiant) 

Sworn to (or affirmed) and subscribed before me this _____ day of  (month) ,  (year) , by  (name of person making statement) 


 (Signature of Notary Public-State of Florida) 


 (Print, Type, or Stamp Commissioned Name of Notary Public) 


Personally Known OR Produced Identification
 (Type of Identification Produced) 

(d)  A determination that a principal lacks the capacity to manage property as defined in s. 744.102(12)(a) must be made and evidenced by the affidavit of a physician licensed to practice medicine pursuant to chapters 458 and 459 as of the date of the affidavit. A judicial determination that the principal lacks the capacity to manage property pursuant to chapter 744 is not required prior to the determination by the physician and the execution of the affidavit. For purposes of this section, the physician executing the affidavit must be the primary physician who has responsibility for the treatment and care of the principal. The affidavit executed by a physician must state where the physician is licensed to practice medicine, that the physician is the primary physician who has responsibility for the treatment and care of the principal, and that the physician believes that the principal lacks the capacity to manage property as defined in s. 744.102(12)(a). The affidavit may, but need not, be in the following form:


STATE OF_______________
COUNTY OF_______________

Before me, the undersigned authority, personally appeared  (name of physician) , Affiant, who swore or affirmed that:

1.  Affiant is a physician licensed to practice medicine in  (name of state, territory, or foreign country) .

2.  Affiant is the primary physician who has responsibility for the treatment and care of  (principal's name) .

3.  To the best of Affiant's knowledge after reasonable inquiry, Affiant believes that the principal lacks the capacity to manage property, including taking those actions necessary to obtain, administer, and dispose of real and personal property, intangible property, business property, benefits, and income.

____________________

 (Affiant) 

Sworn to (or affirmed) and subscribed before me this  (day of)   (month) ,  (year) , by  (name of person making statement) 


 (Signature of Notary Public-State of Florida) 


 (Print, Type, or Stamp Commissioned Name of Notary Public) 


Personally Known OR Produced Identification

 (Type of Identification Produced) 

(e)  A physician who makes a determination of incapacity to manage property under paragraph (d) is not subject to criminal prosecution or civil liability and is not considered to have engaged in unprofessional conduct as a result of making such determination, unless it is shown by a preponderance of the evidence that the physician making the determination did not comply in good faith with the provisions of this section.

(f)  A third party may not rely on the authority granted in a durable power of attorney conditioned on the principal's lack of capacity to manage property as defined in s. 744.102(12)(a) when any affidavit presented has been executed more than 6 months prior to the first presentation of the durable power of attorney to the third party.

(g)  Third parties who act in reliance upon the authority granted to the attorney in fact under the durable power of attorney and in accordance with the instructions of the attorney in fact must be held harmless by the principal from any loss suffered or liability incurred as a result of actions taken prior to receipt of written notice pursuant to subsection (5). A person who acts in good faith upon any representation, direction, decision, or act of the attorney in fact is not liable to the principal or the principal's estate, beneficiaries, or joint owners for those acts.

(h)  A durable power of attorney may provide that the attorney in fact is not liable for any acts or decisions made by the attorney in fact in good faith and under the terms of the durable power of attorney.

(5)  NOTICE.--

(a)  A notice, including, but not limited to, a notice of revocation, notice of partial or complete termination by adjudication of incapacity or by the occurrence of an event referenced in the durable power of attorney, notice of death of the principal, notice of suspension by initiation of proceedings to determine incapacity or to appoint a guardian, or other notice, is not effective until written notice is served upon the attorney in fact or any third persons relying upon a durable power of attorney.

(b)  Notice must be in writing and served on the person or entity to be bound by the notice. Service may be by any form of mail that requires a signed receipt or by personal delivery as provided for service of process. Service is complete when received by interested persons or entities specified in this section and in chapter 48, where applicable. In the case of a financial institution as defined in chapter 655, notice, when not mailed, must be served during regular business hours upon an officer or manager of the financial institution at the financial institution's principal place of business in Florida and its office where the power of attorney or account was presented, handled, or administered. Notice by mail to a financial institution must be mailed to the financial institution's principal place of business in this state and its office where the power of attorney or account was presented, handled, or administered. Except for service of court orders, a third party served with notice must be given 14 calendar days after service to act upon that notice. In the case of a financial institution, notice must be served before the occurrence of any of the events described in s. 674.303

(6)  PROPERTY SUBJECT TO DURABLE POWER OF ATTORNEY.--Unless otherwise stated in the durable power of attorney, the durable power of attorney applies to any interest in property owned by the principal, including, without limitation, the principal's interest in all real property, including homestead real property; all personal property, tangible or intangible; all property held in any type of joint tenancy, including a tenancy in common, joint tenancy with right of survivorship, or a tenancy by the entirety; all property over which the principal holds a general, limited, or special power of appointment; choses in action; and all other contractual or statutory rights or elections, including, but not limited to, any rights or elections in any probate or similar proceeding to which the principal is or may become entitled.

(7)  POWERS OF THE ATTORNEY IN FACT AND LIMITATIONS.--

(a)  Except as otherwise limited by this section, by other applicable law, or by the durable power of attorney, the attorney in fact has full authority to perform, without prior court approval, every act authorized and specifically enumerated in the durable power of attorney. Such authorization may include, except as otherwise limited in this section:

1.  The authority to execute stock powers or similar documents on behalf of the principal and delegate to a transfer agent or similar person the authority to register any stocks, bonds, or other securities either into or out of the principal's or nominee's name.

2.  The authority to convey or mortgage homestead property. If the principal is married, the attorney in fact may not mortgage or convey homestead property without joinder of the spouse of the principal or the spouse's legal guardian. Joinder by a spouse may be accomplished by the exercise of authority in a durable power of attorney executed by the joining spouse, and either spouse may appoint the other as his or her attorney in fact.

(b)  Notwithstanding the provisions of this section, an attorney in fact may not:

1.  Perform duties under a contract that requires the exercise of personal services of the principal;

2.  Make any affidavit as to the personal knowledge of the principal;

3.  Vote in any public election on behalf of the principal;

4.  Execute or revoke any will or codicil for the principal;

5.  Create, amend, modify, or revoke any document or other disposition effective at the principal's death or transfer assets to an existing trust created by the principal unless expressly authorized by the power of attorney; or

6.  Exercise powers and authority granted to the principal as trustee or as court-appointed fiduciary.

(c)  If such authority is specifically granted in the durable power of attorney, the attorney in fact may make all health care decisions on behalf of the principal, including, but not limited to, those set forth in chapter 765.

¹(8)  STANDARD OF CARE.--Except as otherwise provided in paragraph (4)(e), an attorney in fact is a fiduciary who must observe the standards of care applicable to trustees as described in s. 737.302 The attorney in fact is not liable to third parties for any act pursuant to the durable power of attorney if the act was authorized at the time. If the exercise of the power is improper, the attorney in fact is liable to interested persons as described in s. 731.201 for damage or loss resulting from a breach of fiduciary duty by the attorney in fact to the same extent as the trustee of an express trust.

(9)  MULTIPLE ATTORNEYS IN FACT; WHEN JOINT ACTION REQUIRED.--Unless the durable power of attorney provides otherwise:

(a)  If a durable power of attorney is vested jointly in two attorneys in fact by the same instrument, concurrence of both is required on all acts in the exercise of the power.

(b)  If a durable power of attorney is vested jointly in three or more attorneys in fact by the same instrument, concurrence of a majority is required in all acts in the exercise of the power.

(c)  An attorney in fact who has not concurred in the exercise of authority is not liable to the principal or any other person for the consequences of the exercise. A dissenting attorney in fact is not liable for the consequences of an act in which the attorney in fact joins at the direction of the majority of the joint attorneys in fact if the attorney in fact expresses such dissent in writing to any of the other joint attorneys in fact at or before the time of the joinder.

(d)  If the attorney in fact has accepted appointment either expressly in writing or by acting under the power, this section does not excuse the attorney in fact from liability for failure either to participate in the administration of assets subject to the power or for failure to attempt to prevent a breach of fiduciary obligations thereunder.

(10)  POWERS OF REMAINING ATTORNEY IN FACT.--Unless the durable power of attorney provides otherwise, all authority vested in multiple attorneys in fact may be exercised by the one or more that remain after the death, resignation, or incapacity of one or more of the multiple attorneys in fact.

(11)  DAMAGES AND COSTS.--In any judicial action under this section, including, but not limited to, the unreasonable refusal of a third party to allow an attorney in fact to act pursuant to the power, and challenges to the proper exercise of authority by the attorney in fact, the prevailing party is entitled to damages and costs, including reasonable attorney's fees.

(12)  APPLICATION.--This section applies to only those durable powers of attorney executed on or after October 1, 1995.

(13)  PARTIAL INVALIDITY.--If any provision of this section or its application to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of this section which can be given effect without the invalid provision or application and to this end the provisions of this section are severable.

History.--s. 1, ch. 74-245; s. 1, ch. 77-272; s. 1, ch. 83-139; s. 1, ch. 88-36; s. 24, ch. 90-232; s. 1, ch. 92-71; s. 8, ch. 92-199; s. 17, ch. 95-401; s. 796, ch. 97-102; s. 2, ch. 97-240; s. 29, ch. 99-6; s. 1, ch. 2001-241; s. 104, ch. 2002-1; s. 22, ch. 2003-154; s. 16, ch. 2004-260; s. 31, ch. 2006-178; s. 24, ch. 2006-217.

¹Note.--Section 24, ch. 2006-217, amended subsection (8), effective July 1, 2007, to read:

(8)  STANDARD OF CARE.--Except as otherwise provided in paragraph (4)(e), an attorney in fact is a fiduciary who must observe the standards of care applicable to trustees as described in s. 736.0901 The attorney in fact is not liable to third parties for any act pursuant to the durable power of attorney if the act was authorized at the time. If the exercise of the power is improper, the attorney in fact is liable to interested persons as described in s. 731.201 for damage or loss resulting from a breach of fiduciary duty by the attorney in fact to the same extent as the trustee of an express trust.