CODING: Words stricken are deletions; words underlined are additions.
SENATE AMENDMENT
Bill No. CS for SB 1066
Amendment No.
CHAMBER ACTION
Senate House
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11 Senator Klein moved the following amendment:
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13 Senate Amendment (with title amendment)
14 Delete everything after the enacting clause
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16 and insert:
17 Section 1. Subsections (1), (4), and (5) of section
18 709.08, Florida Statutes, are amended to read:
19 709.08 Durable power of attorney.--
20 (1) CREATION OF DURABLE POWER OF ATTORNEY.--A durable
21 power of attorney is a written power of attorney by which a
22 principal designates another as the principal's attorney in
23 fact. The durable power of attorney must be in writing, must
24 be executed with the same formalities required for the
25 conveyance of real property by Florida law, and must contain
26 the words: "This durable power of attorney is not affected by
27 subsequent incapacity of the principal except as provided in
28 s. 709.08, Florida Statutes"; or similar words that show the
29 principal's intent that the authority conferred is exercisable
30 notwithstanding the principal's subsequent incapacity, except
31 as otherwise provided by this section. The durable power of
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SENATE AMENDMENT
Bill No. CS for SB 1066
Amendment No.
1 attorney is exercisable as of the date of execution; however,
2 if the durable power of attorney is conditioned upon the
3 principal's lack of capacity to manage property as defined in
4 s. 744.102(10)(a), the durable power of attorney is
5 exercisable upon the delivery of affidavits in paragraphs (c)
6 and (d) to the third party.
7 (4) PROTECTION WITHOUT NOTICE; GOOD FAITH ACTS;
8 AFFIDAVITS.--
9 (a) Any third party may rely upon the authority
10 granted in a durable power of attorney which is not
11 conditioned on the principal's lack of capacity to manage
12 property until the third party has received notice as provided
13 in subsection (5). A third party may, but need not, require
14 the attorney in fact to execute an affidavit pursuant to
15 paragraph (c).
16 (b) Any third party may rely upon the authority
17 granted in a durable power of attorney which is conditioned on
18 the principal's lack of capacity to manage property as defined
19 in s. 744.102(10)(a) only after receiving the affidavits
20 provided in paragraphs (c) and (d), and such reliance shall
21 end when the third party has received notice as provided in
22 subsection (5). Until a third party has received notice of
23 revocation pursuant to subsection (5), partial or complete
24 termination of the durable power of attorney by adjudication
25 of incapacity, suspension by initiation of proceedings to
26 determine incapacity, death of the principal, or the
27 occurrence of an event referenced in the power of attorney,
28 the third party may act in reliance upon the authority granted
29 in the durable power of attorney.
30 (c) A third party that has not received written notice
31 under subsection (5) may, but need not, require that the
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SENATE AMENDMENT
Bill No. CS for SB 1066
Amendment No.
1 attorney in fact execute An affidavit executed by the attorney
2 in fact must state where the principal is domiciled, that the
3 principal is not deceased, and stating that there has been no
4 revocation, partial or complete termination by adjudication of
5 incapacity or by the occurrence of an event referenced in the
6 durable power of attorney, or suspension by initiation of
7 proceedings to determine incapacity or to appoint a guardian
8 of the durable power of attorney at the time the power of
9 attorney is exercised. A written affidavit executed by the
10 attorney in fact under this paragraph may, but need not, be in
11 the following form:
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13 STATE OF
14 COUNTY OF
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16 Before me, the undersigned authority, personally
17 appeared ...(attorney in fact)... ("Affiant"), who swore or
18 affirmed that:
19 1. Affiant is the attorney in fact named in the
20 Durable Power of Attorney executed by ...(principal)...
21 ("Principal") on ...(date)....
22 2. This Durable Power of Attorney is currently
23 exercisable by Affiant. The principal is domiciled in
24 ...insert name of state, territory or foreign county....
25 3.2. To the best of the Affiant's knowledge after
26 diligent search and inquiry:
27 a. The Principal is not deceased, has not been
28 adjudicated incapacitated, and has not revoked, partially or
29 completely terminated, or suspended the Durable Power of
30 Attorney; and
31 b. There has been no revocation, partial or complete
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SENATE AMENDMENT
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Amendment No.
1 termination by adjudication of incapacity or by the occurrence
2 of an event referenced in the durable power of attorney, or
3 suspension by initiation of proceedings to determine
4 incapacity or to appoint a guardian A petition to determine
5 the incapacity of or to appoint a guardian for the Principal
6 is not pending.
7 4.3. Affiant agrees not to exercise any powers granted
8 by the Durable Power of Attorney if Affiant attains knowledge
9 that it has been revoked, partially or completely terminated,
10 suspended, or is no longer valid because of the death or
11 adjudication of incapacity of the Principal.
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14 ...Affiant...
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16 Sworn to (or affirmed) and subscribed before me
17 this.... day of , ...(month)... ...(year)..., by ...(name
18 of person making statement)...
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20 ...(Signature of Notary Public-State of Florida)...
21 (Print, Type, or Stamp Commissioned Name of Notary Public)
22 Personally Known OR Produced Identification
23 ...(Type of Identification Produced)...
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25 (d) A determination that a principal lacks the
26 capacity to manage property as defined in s. 744.102(10)(a)
27 must be made and evidenced by the affidavits of at least two
28 physicians licensed to practice medicine as of the date of the
29 affidavit. A judicial determination that the principal lacks
30 the capacity to manage property pursuant to chapter 744 is not
31 required prior to the determination by the physicians and
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Amendment No.
1 execution of the affidavits. At least one of the physicians
2 must be the attending physician. For purposes of this section,
3 the attending physician is the primary physician who has
4 responsibility for the treatment and care of the principal.
5 Affidavits executed by each of the physicians must state where
6 the physician is licensed to practice medicine, whether the
7 physician is an attending physician, and that the physician
8 believes that the principal lacks the capacity to manage
9 property as defined in s. 744.102(10)(a). The affidavit may,
10 but need not, be in the following form:
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12 STATE OF
13 COUNTY OF
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15 Before me, the undersigned authority, personally
16 appeared .......(name of physician)..., Affiant, who swore or
17 affirmed that:
18 1. Affiant is a physician licensed to practice
19 medicine in ...(name of state, territory, or foreign
20 country)....
21 2. Affiant is ( ) is not ( ) (check one) the
22 primary physician who has responsibility for the treatment and
23 care of ...(principal's name)....
24 3. To the best of Affiant's knowledge after reasonable
25 inquiry, Affiant believes that the principal lacks the
26 capacity to manage property, including taking those actions
27 necessary to obtain, administer, and dispose of real and
28 personal property, intangible property, business property,
29 benefits, and income.
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31 Affiant
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SENATE AMENDMENT
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Amendment No.
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2 Sworn to (or affirmed) and subscribed before me this
3 ...day of ...(month)..., ...(year)..., by .... (name of person
4 making statement).............
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6 ....(Signature of Notary Public-State of Florida)....
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8 ....(Print, Type, or Stamp Commissioned Name of Notary
9 Public)....
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11 Personally Known OR Produced Identification
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13 ....(Type of Identification Produced)....
14 (e) A third party may not rely on the authority
15 granted in a durable power of attorney conditioned on the
16 principal's lack of capacity to manage property as defined in
17 s. 744.102(10)(a) when any affidavit presented was executed
18 more than 6 months prior to the first presentation of the
19 durable power of attorney to the third party.
20 (f)(d) Third parties who act in reliance upon the
21 authority granted to the attorney in fact under the durable
22 power of attorney and in accordance with the instructions of
23 the attorney in fact must be held harmless by the principal
24 from any loss suffered or liability incurred as a result of
25 actions taken prior to receipt of written notice pursuant to
26 subsection (5) of revocation, suspension, notice of a petition
27 to determine incapacity, partial or complete termination, or
28 death of the principal. A person who acts in good faith upon
29 any representation, direction, decision, or act of the
30 attorney in fact is not liable to the principal or the
31 principal's estate, beneficiaries, or joint owners for those
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SENATE AMENDMENT
Bill No. CS for SB 1066
Amendment No.
1 acts.
2 (g)(e) A durable power of attorney may provide that
3 the attorney in fact is not liable for any acts or decisions
4 made by the attorney in fact in good faith and under the terms
5 of the durable power of attorney.
6 (5) NOTICE.--
7 (a) A notice, including, but not limited to, a notice
8 of revocation, notice of partial or complete termination by
9 adjudication of incapacity or by the occurrence of an event
10 referenced in the durable power of attorney, notice of death
11 of the principal, notice of suspension by initiation of
12 proceedings to determine incapacity or to appoint a guardian,
13 or other notice, suspension, or otherwise, is not effective
14 until written notice is served upon the attorney in fact or
15 any third persons relying upon a durable power of attorney.
16 (b) Notice must be in writing and served on the person
17 or entity to be bound by the such notice. Service may be by
18 any form of mail that requires a signed receipt or by personal
19 delivery as provided for service of process. Service is
20 complete when received by interested persons or entities
21 specified in this section and in chapter 48, where applicable.
22 In the case of a financial institution as defined in chapter
23 655, notice, when not mailed, must be served during regular
24 business hours upon an officer or manager of the financial
25 institution at the financial institution's principal place of
26 business in Florida and its office where the power of attorney
27 or account was presented, handled, or administered. Notice by
28 mail to a financial institution must be mailed to the
29 financial institution's principal place of business in this
30 state and its office where the power of attorney or account
31 was presented, handled, or administered. Except for service of
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SENATE AMENDMENT
Bill No. CS for SB 1066
Amendment No.
1 court orders, a third party served with notice must be given
2 14 calendar days after service to act upon that notice. In the
3 case of a financial institution, notice must be served before
4 the occurrence of any of the events described in s. 674.303.
5 Section 2. This act shall take effect January 1, 2001.
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8 ================ T I T L E A M E N D M E N T ===============
9 And the title is amended as follows:
10 Delete everything before the enacting clause
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12 and insert:
13 A bill to be entitled
14 An act relating to durable powers of attorney;
15 amending s. 709.08, F.S.; providing for durable
16 powers of attorney contingent upon a specified
17 condition; providing guidelines for such
18 powers; providing statutory forms for
19 affidavits to attest to specified condition;
20 providing an effective date.
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