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2018 Florida Statutes
Authority that requires separate signed enumeration.
Authority that requires separate signed enumeration.
709.2202 Authority that requires separate signed enumeration.—
(1) Notwithstanding s. 709.2201, an agent may exercise the following authority only if the principal signed or initialed next to each specific enumeration of the authority, the exercise of the authority is consistent with the agent’s duties under s. 709.2114, and the exercise is not otherwise prohibited by another agreement or instrument:
(a) Create an inter vivos trust;
(b) With respect to a trust created by or on behalf of the principal, amend, modify, revoke, or terminate the trust, but only if the trust instrument explicitly provides for amendment, modification, revocation, or termination by the settlor’s agent;
(c) Make a gift, subject to subsection (4);
(d) Create or change rights of survivorship;
(e) Create or change a beneficiary designation;
(f) Waive the principal’s right to be a beneficiary of a joint and survivor annuity, including a survivor benefit under a retirement plan; or
(g) Disclaim property and powers of appointment.
(2) In addition to signing the power of attorney on behalf of the principal pursuant to s. 709.2105(3), if the principal is physically unable to sign or initial next to any enumerated authority for which subsection (1) requires the principal to sign or initial, the notary public before whom the principal’s oath or acknowledgment is made may sign the principal’s name or initials if:
(a) The principal directs the notary to sign the principal’s name or initials on the power of attorney next to any enumerated authority for which subsection (1) requires the principal to sign or initial;
(b) The signing or initialling by the notary is done in the presence of the principal and witnessed by two disinterested subscribing witnesses; and
(c) The notary writes the statement “Signature or initials affixed by the notary pursuant to s. 709.2202(2), Florida Statutes,” below each signature or initial that the notary writes on behalf of the principal.
Only one notarial certificate in substantially the same form as those described in s. 117.05(14), which states the circumstances of all signatures and initials written by the notary public, is required to be completed by the notary public.
(3) Notwithstanding a grant of authority to do an act described in subsection (1), unless the power of attorney otherwise provides, an agent who is not an ancestor, spouse, or descendant of the principal may not exercise authority to create in the agent, or in an individual to whom the agent owes a legal obligation of support, an interest in the principal’s property, whether by gift, right of survivorship, beneficiary designation, disclaimer, or otherwise.
(4) Unless the power of attorney otherwise provides, a provision in a power of attorney granting general authority with respect to gifts authorizes the agent to only:
(a) Make outright to, or for the benefit of, a person a gift of any of the principal’s property, including by the exercise of a presently exercisable general power of appointment held by the principal, in an amount per donee per calendar year not to exceed the annual dollar limits of the federal gift tax exclusion under 26 U.S.C. s. 2503(b), as amended, without regard to whether the federal gift tax exclusion applies to the gift, or if the principal’s spouse agrees to consent to a split gift pursuant to 26 U.S.C. s. 2513, as amended, in an amount per donee per calendar year not to exceed twice the annual federal gift tax exclusion limit; and
(b) Consent, pursuant to 26 U.S.C. s. 2513, as amended, to the splitting of a gift made by the principal’s spouse in an amount per donee per calendar year not to exceed the aggregate annual gift tax exclusions for both spouses.
(5) Notwithstanding subsection (1), if a power of attorney is otherwise sufficient to grant an agent authority to conduct banking transactions, as provided in s. 709.2208(1), conduct investment transactions as provided in s. 709.2208(2), or otherwise make additions to or withdrawals from an account of the principal, making a deposit to or withdrawal from an insurance policy, retirement account, individual retirement account, benefit plan, bank account, or any other account held jointly or otherwise held in survivorship or payable on death, is not considered to be a change to the survivorship feature or beneficiary designation, and no further specific authority is required for the agent to exercise such authority. A financial institution or broker-dealer does not have a duty to inquire as to the appropriateness of the agent’s exercise of that authority and is not liable to the principal or any other person for actions taken in good faith reliance on the appropriateness of the agent’s actions. This subsection does not eliminate the agent’s fiduciary duties to the principal with respect to any exercise of the power of attorney.
(6) This section does not apply to a power of attorney executed before October 1, 2011.
History.—s. 25, ch. 2011-210; s. 10, ch. 2013-90.