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.

  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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    CS for SB 1066                                 First Engrossed



  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.

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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.

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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  1

  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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    CS for SB 1066                                 First Engrossed



  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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    CS for SB 1066                                 First Engrossed



  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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