Senate Bill 1066e1
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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.
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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:
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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.
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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:
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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.
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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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1
2 ....(Signature of Notary Public-State of Florida)....
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4 ....(Print, Type, or Stamp Commissioned Name of Notary
5 Public)....
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7 Personally Known OR Produced Identification
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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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