Senate Bill 1066e1
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    CS for SB 1066                                 First Engrossed
  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:
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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 lack of capacity to manage property as defined in
30  s. 744.102(10)(a), the durable power of attorney is
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  1  exercisable upon the delivery of affidavits in paragraphs
  2  (4)(c) and (d) 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 lack of capacity to manage
  8  property until the third party has received notice as provided
  9  in subsection (5). A third party may, but need not, require
10  the attorney in fact to execute an affidavit pursuant to
11  paragraph (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 lack of capacity to manage property as defined
15  in s. 744.102(10)(a) only after receiving the affidavits
16  provided in paragraphs (c) and (d), and such reliance shall
17  end when the third party has received notice as provided in
18  subsection (5). Until a third party has received notice of
19  revocation pursuant to subsection (5), partial or complete
20  termination of the durable power of attorney by adjudication
21  of incapacity, suspension by initiation of proceedings to
22  determine incapacity, death of the principal, or the
23  occurrence of an event referenced in the power of attorney,
24  the third party may act in reliance upon the authority granted
25  in the durable 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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  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
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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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  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)...
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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)...
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21         (d)  A determination that a principal lacks the
22  capacity to manage property as defined in s. 744.102(10)(a)
23  must be made and evidenced by the affidavits of at least two
24  physicians licensed to practice medicine as of the date of the
25  affidavit. A judicial determination that the principal lacks
26  the capacity to manage property pursuant to chapter 744 is not
27  required prior to the determination by the physicians and
28  execution of the affidavits. At least one of the physicians
29  must be the attending physician. For purposes of this section,
30  the attending physician is the primary physician who has
31  responsibility for the treatment and care of the principal.
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  1  Affidavits executed by each of the physicians must state where
  2  the physician is licensed to practice medicine, whether the
  3  physician is an attending physician, and that the physician
  4  believes that the principal lacks the capacity to manage
  5  property as defined in s. 744.102(10)(a). The affidavit may,
  6  but need not, be in the following form:
  7
  8  STATE OF
  9  COUNTY OF
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11         Before me, the undersigned authority, personally
12  appeared .......(name of physician)..., Affiant, who swore or
13  affirmed that:
14         1.  Affiant is a physician licensed to practice
15  medicine in ...(name of state, territory, or foreign
16  country)....
17         2.  Affiant is (   ) is not (   ) (check one) the
18  primary physician who has responsibility for the treatment and
19  care of ...(principal's name)....
20         3.  To the best of Affiant's knowledge after reasonable
21  inquiry, Affiant believes that the principal lacks the
22  capacity to manage property, including taking those actions
23  necessary to obtain, administer, and dispose of real and
24  personal property, intangible property, business property,
25  benefits, and income.
26                    
27         Affiant
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29         Sworn to (or affirmed) and subscribed before me this
30  ...day of ...(month)..., ...(year)..., by .... (name of person
31  making statement).............
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  2  ....(Signature of Notary Public-State of Florida)....
  3
  4  ....(Print, Type, or Stamp Commissioned Name of Notary
  5  Public)....
  6
  7  Personally Known OR Produced Identification
  8
  9  ....(Type of Identification Produced)....
10         (e)  A third party may not rely on the authority
11  granted in a durable power of attorney conditioned on the
12  principal's lack of capacity to manage property as defined in
13  s. 744.102(10)(a) when any affidavit presented was executed
14  more than 6 months prior to the first presentation of the
15  durable power of attorney to the third party.
16         (f)(d)  Third parties who act in reliance upon the
17  authority granted to the attorney in fact under the durable
18  power of attorney and in accordance with the instructions of
19  the attorney in fact must be held harmless by the principal
20  from any loss suffered or liability incurred as a result of
21  actions taken prior to receipt of written notice pursuant to
22  subsection (5) of revocation, suspension, notice of a petition
23  to determine incapacity, partial or complete termination, or
24  death of the principal.  A person who acts in good faith upon
25  any representation, direction, decision, or act of the
26  attorney in fact is not liable to the principal or the
27  principal's estate, beneficiaries, or joint owners for those
28  acts.
29         (g)(e)  A durable power of attorney may provide that
30  the attorney in fact is not liable for any acts or decisions
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  1  made by the attorney in fact in good faith and under the terms
  2  of the durable power of attorney.
  3         (5)  NOTICE.--
  4         (a)  A notice, including, but not limited to, a notice
  5  of revocation, notice of partial or complete termination by
  6  adjudication of incapacity or by the occurrence of an event
  7  referenced in the durable power of attorney, notice of death
  8  of the principal, notice of suspension by initiation of
  9  proceedings to determine incapacity or to appoint a guardian,
10  or other notice, suspension, or otherwise, is not effective
11  until written notice is served upon the attorney in fact or
12  any third persons relying upon a durable power of attorney.
13         (b)  Notice must be in writing and served on the person
14  or entity to be bound by the such notice.  Service may be by
15  any form of mail that requires a signed receipt or by personal
16  delivery as provided for service of process. Service is
17  complete when received by interested persons or entities
18  specified in this section and in chapter 48, where applicable.
19  In the case of a financial institution as defined in chapter
20  655, notice, when not mailed, must be served during regular
21  business hours upon an officer or manager of the financial
22  institution at the financial institution's principal place of
23  business in Florida and its office where the power of attorney
24  or account was presented, handled, or administered.  Notice by
25  mail to a financial institution must be mailed to the
26  financial institution's principal place of business in this
27  state and its office where the power of attorney or account
28  was presented, handled, or administered. Except for service of
29  court orders, a third party served with notice must be given
30  14 calendar days after service to act upon that notice. In the
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  1  case of a financial institution, notice must be served before
  2  the occurrence of any of the events described in s. 674.303.
  3         Section 2.  This act shall take effect January 1, 2001.
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