Senate Bill 1066c1

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    Florida Senate - 2000                           CS for SB 1066

    By the Committee on Judiciary and Senator Klein





    308-1718-00

  1                      A bill to be entitled

  2         An act relating to durable powers of attorney;

  3         amending s. 709.08, F.S.; providing for durable

  4         powers of attorney contingent upon a specified

  5         condition; providing guidelines for such

  6         powers; providing statutory forms for

  7         affidavits to attest to specified condition;

  8         providing an effective date.

  9

10  Be It Enacted by the Legislature of the State of Florida:

11

12         Section 1.  Subsections (1), (4), and (5) of section

13  709.08, Florida Statutes, are amended to read:

14         709.08  Durable power of attorney.--

15         (1)  CREATION OF DURABLE POWER OF ATTORNEY.--A durable

16  power of attorney is a written power of attorney by which a

17  principal designates another as the principal's attorney in

18  fact. The durable power of attorney must be in writing, must

19  be executed with the same formalities required for the

20  conveyance of real property by Florida law, and must contain

21  the words: "This durable power of attorney is not affected by

22  subsequent incapacity of the principal except as provided in

23  s. 709.08, Florida Statutes"; or similar words that show the

24  principal's intent that the authority conferred is exercisable

25  notwithstanding the principal's subsequent incapacity, except

26  as otherwise provided by this section.  The durable power of

27  attorney is exercisable as of the date of execution; however,

28  if the durable power of attorney is conditioned upon the

29  principal's inability to manage property as defined in s.

30  744.102(10)(a), the durable power of attorney is exercisable

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    Florida Senate - 2000                           CS for SB 1066
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  1  upon the delivery of affidavits in paragraphs (c) and (d) of

  2  subsection (4) to the third party.

  3         (4)  PROTECTION WITHOUT NOTICE; GOOD FAITH ACTS;

  4  AFFIDAVITS.--

  5         (a)  Any third party may rely upon the authority

  6  granted in a durable power of attorney which is not

  7  conditioned on the principal's inability to manage property

  8  until the third party has received notice as provided in

  9  subsection (5). A third party may, but need not, require the

10  attorney in fact to execute an affidavit pursuant to paragraph

11  (c).

12         (b)  Any third party may rely upon the authority

13  granted in a durable power of attorney which is conditioned on

14  the principal's inability to manage property as defined in s.

15  744.102(10)(a) only after receiving the affidavits provided in

16  paragraphs (c) and (d), and such reliance shall end when the

17  third party has received notice as provided in subsection (5).

18  Until a third party has received notice of revocation pursuant

19  to subsection (5), partial or complete termination of the

20  durable power of attorney by adjudication of incapacity,

21  suspension by initiation of proceedings to determine

22  incapacity, death of the principal, or the occurrence of an

23  event referenced in the power of attorney, the third party may

24  act in reliance upon the authority granted in the durable

25  power of attorney.

26         (c)  A third party that has not received written notice

27  under subsection (5) may, but need not, require that the

28  attorney in fact execute An affidavit executed by the attorney

29  in fact must state where the principal is domiciled, that the

30  principal is not deceased, and stating that there has been no

31  revocation, partial or complete termination by adjudication of

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    Florida Senate - 2000                           CS for SB 1066
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  1  incapacity or by the occurrence of an event referenced in the

  2  durable power of attorney, or suspension by initiation of

  3  proceedings to determine incapacity or to appoint a guardian

  4  of the durable power of attorney at the time the power of

  5  attorney is exercised.  A written affidavit executed by the

  6  attorney in fact under this paragraph may, but need not, be in

  7  the following form:

  8

  9  STATE OF

10  COUNTY OF

11

12         Before me, the undersigned authority, personally

13  appeared ...(attorney in fact)... ("Affiant"), who swore or

14  affirmed that:

15         1.  Affiant is the attorney in fact named in the

16  Durable Power of Attorney executed by ...(principal)...

17  ("Principal") on ...(date)....

18         2.  This Durable Power of Attorney is currently

19  exercisable by Affiant. The principal is domiciled in

20  ...insert name of state, territory or foreign county....

21         3.2.  To the best of the Affiant's knowledge after

22  diligent search and inquiry:

23         a.  The Principal is not deceased, has not been

24  adjudicated incapacitated, and has not revoked, partially or

25  completely terminated, or suspended the Durable Power of

26  Attorney; and

27         b.  There has been no revocation, partial or complete

28  termination by adjudication of incapacity or by the occurrence

29  of an event referenced in the durable power of attorney, or

30  suspension by initiation of proceedings to determine

31  incapacity or to appoint a guardian A petition to determine

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    Florida Senate - 2000                           CS for SB 1066
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  1  the incapacity of or to appoint a guardian for the Principal

  2  is not pending.

  3         4.3.  Affiant agrees not to exercise any powers granted

  4  by the Durable Power of Attorney if Affiant attains knowledge

  5  that it has been revoked, partially or completely terminated,

  6  suspended, or is no longer valid because of the death or

  7  adjudication of incapacity of the Principal.

  8

  9                                                ................

10                                                   ...Affiant...

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12         Sworn to (or affirmed) and subscribed before me

13  this.... day of    , ...(month)... ...(year)..., by ...(name

14  of person making statement)...

15

16  ...(Signature of Notary Public-State of Florida)...

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

18  Personally Known  OR Produced Identification

19  ...(Type of Identification Produced)...

20

21         (d)  A determination that a principal is unable to

22  manage property as defined in s. 744.102(10)(a) must be made

23  and evidenced by the affidavits of at least two physicians

24  licensed to practice medicine as of the date of the affidavit.

25  At least one of the physicians must be the attending

26  physician. For purposes of this section, the attending

27  physician is the primary physician who has responsibility for

28  the treatment and care of the principal. Affidavits executed

29  by each of the physicians must state where the physician is

30  licensed to practice medicine, whether the physician is an

31  attending physician, and that the physician believes that the

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    Florida Senate - 2000                           CS for SB 1066
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  1  principal is unable to manage property as defined in s.

  2  744.102(10)(a). The affidavit may, but need not, be in the

  3  following form:

  4

  5  STATE OF

  6  COUNTY OF

  7

  8         Before me, the undersigned authority, personally

  9  appeared .......(name of physician)..., Affiant, who swore or

10  affirmed that:

11         1.  Affiant is a physician licensed to practice

12  medicine in ...(name of state, territory, or foreign

13  country)....

14         2.  Affiant is (   ) is not (   ) (check one) the

15  primary physician who has responsibility for the treatment and

16  care of ...(principal's name)...("Principal").

17         3.  To the best of Affiant's knowledge after reasonable

18  inquiry, Affiant believes that the principal is unable to

19  manage property, including taking those actions necessary to

20  obtain, administer, and dispose of real and personal property,

21  intangible property, business property, benefits, and income.

22                    

23         Affiant

24

25         Sworn to (or affirmed) and subscribed before me this

26  ...day of ...(month)..., ...(year)..., by .... (name of person

27  making statement).............

28

29  ....(Signature of Notary Public-State of Florida)....

30

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    Florida Senate - 2000                           CS for SB 1066
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  1  ....(Print, Type, or Stamp Commissioned Name of Notary

  2  Public)....

  3

  4  Personally Known OR Produced Identification

  5

  6  ....(Type of Identification Produced)....

  7         (e)  A third party may not rely on the authority

  8  granted in a durable power of attorney when any affidavit

  9  presented was executed more than 6 months prior to the first

10  presentation of the durable power of attorney to the third

11  party.

12         (f)(d)  Third parties who act in reliance upon the

13  authority granted to the attorney in fact under the durable

14  power of attorney and in accordance with the instructions of

15  the attorney in fact must be held harmless by the principal

16  from any loss suffered or liability incurred as a result of

17  actions taken prior to receipt of written notice pursuant to

18  subsection (5) of revocation, suspension, notice of a petition

19  to determine incapacity, partial or complete termination, or

20  death of the principal.  A person who acts in good faith upon

21  any representation, direction, decision, or act of the

22  attorney in fact is not liable to the principal or the

23  principal's estate, beneficiaries, or joint owners for those

24  acts.

25         (g)(e)  A durable power of attorney may provide that

26  the attorney in fact is not liable for any acts or decisions

27  made by the attorney in fact in good faith and under the terms

28  of the durable power of attorney.

29         (5)  NOTICE.--

30         (a)  A notice, including, but not limited to, a notice

31  of revocation, notice of partial or complete termination by

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    Florida Senate - 2000                           CS for SB 1066
    308-1718-00




  1  adjudication of incapacity or by the occurrence of an event

  2  referenced in the durable power of attorney, notice of death

  3  of the principal, notice of suspension by initiation of

  4  proceedings to determine incapacity or to appoint a guardian,

  5  or other notice, suspension, or otherwise, is not effective

  6  until written notice is served upon the attorney in fact or

  7  any third persons relying upon a durable power of attorney.

  8         (b)  Notice must be in writing and served on the person

  9  or entity to be bound by the such notice.  Service may be by

10  any form of mail that requires a signed receipt or by personal

11  delivery as provided for service of process. Service is

12  complete when received by interested persons or entities

13  specified in this section and in chapter 48, where applicable.

14  In the case of a financial institution as defined in chapter

15  655, notice, when not mailed, must be served during regular

16  business hours upon an officer or manager of the financial

17  institution at the financial institution's principal place of

18  business in Florida and its office where the power of attorney

19  or account was presented, handled, or administered.  Notice by

20  mail to a financial institution must be mailed to the

21  financial institution's principal place of business in this

22  state and its office where the power of attorney or account

23  was presented, handled, or administered. Except for service of

24  court orders, a third party served with notice must be given

25  14 calendar days after service to act upon that notice. In the

26  case of a financial institution, notice must be served before

27  the occurrence of any of the events described in s. 674.303.

28         Section 2.  This act shall take effect January 1, 2001.

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    Florida Senate - 2000                           CS for SB 1066
    308-1718-00




  1          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
  2                             SB 1066

  3

  4  Deletes the provisions creating sections for a contingent
    power of attorney.
  5
    Provides requirements for the execution and the exercise of a
  6  durable power of attorney conditioned solely on the
    principal's inability to manage property and based on the
  7  execution of affidavits from the attorney in fact and two
    physicians.
  8
    Provides suggested statutory forms for such affidavits.
  9
    Clarifies and expands the provisions governing how and when a
10  third party may rely on the authority granted under any
    durable power of attorney.
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    Clarifies notice provisions regarding when a third party may
12  no longer rely on a durable power of attorney based on the
    receipt of a written notice of revocation, termination, or
13  suspension of the durable power of attorney, or written notice
    of other activity signaling that the durable power of attorney
14  is not valid or exercisable.

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