House Bill hb1031

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    Florida House of Representatives - 2001                HB 1031

        By Representative Carassas






  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 a specified condition;

  8         providing immunity from criminal and civil

  9         liability for physicians making a determination

10         of incapacity to manage property under certain

11         conditions; providing an effective date.

12

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

14

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

16  709.08, Florida Statutes, are amended to read:

17         709.08  Durable power of attorney.--

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

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

20  principal designates another as the principal's attorney in

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

22  be executed with the same formalities required for the

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

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

25  subsequent incapacity of the principal except as provided in

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

27  principal's intent that the authority conferred is exercisable

28  notwithstanding the principal's subsequent incapacity, except

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

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

31  if the durable power of attorney is conditioned upon the

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    Florida House of Representatives - 2001                HB 1031

    757-107A-01






  1  principal's lack of capacity to manage property as defined in

  2  s. 744.102(10)(a), the durable power of attorney is

  3  exercisable upon the delivery of affidavits in paragraphs

  4  (4)(c) and (d) to the third party.

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

  6  AFFIDAVITS.--

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

  8  granted in a durable power of attorney that is not conditioned

  9  on the principal's lack of capacity to manage property until

10  the third party has received notice as provided in subsection

11  (5). A third party may, but need not, require the attorney in

12  fact to execute an affidavit pursuant to paragraph (c).

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

14  granted in a durable power of attorney that is conditioned on

15  the principal's lack of capacity to manage property as defined

16  in s. 744.102(10)(a) only after receiving the affidavits

17  provided in paragraphs (c) and (d), and such reliance shall

18  end when the third party has received notice as provided in

19  subsection (5). Until a third party has received notice of

20  revocation pursuant to subsection (5), partial or complete

21  termination of the durable power of attorney by adjudication

22  of incapacity, suspension by initiation of proceedings to

23  determine incapacity, death of the principal, or the

24  occurrence of an event referenced in the power of attorney,

25  the third party may act in reliance upon the authority granted

26  in the durable power of attorney.

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

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

29  attorney in fact execute An affidavit executed by the attorney

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

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

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    Florida House of Representatives - 2001                HB 1031

    757-107A-01






  1  revocation, partial or complete termination by adjudication of

  2  incapacity or by the occurrence of an event referenced in the

  3  durable power of attorney, or suspension by initiation of

  4  proceedings to determine incapacity or to appoint a guardian

  5  of the durable power of attorney at the time the power of

  6  attorney is exercised.  A written affidavit executed by the

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

  8  the following form:

  9

10  STATE OF

11  COUNTY OF

12

13         Before me, the undersigned authority, personally

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

15  affirmed that:

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

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

18  ("Principal") on ...(date)....

19         2.  This Durable Power of Attorney is currently

20  exercisable by Affiant. The principal is domiciled in

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

22         3.2.  To the best of the Affiant's knowledge after

23  diligent search and inquiry:

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

25  adjudicated incapacitated, and has not revoked, partially or

26  completely terminated, or suspended the Durable Power of

27  Attorney; and

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

29  termination by adjudication of incapacity or by the occurrence

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

31  suspension by initiation of proceedings to determine

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    Florida House of Representatives - 2001                HB 1031

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  1  incapacity or to appoint a guardian A petition to determine

  2  the incapacity of or to appoint a guardian for the Principal

  3  is not pending.

  4         4.3.  Affiant agrees not to exercise any powers granted

  5  by the Durable Power of Attorney if Affiant attains knowledge

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

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

  8  adjudication of incapacity of the Principal.

  9

10                                                ................

11                                                   ...Affiant...

12

13         Sworn to (or affirmed) and subscribed before me

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

15  of person making statement)...

16

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

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

19  Personally Known  OR Produced Identification

20  ...(Type of Identification Produced)...

21

22         (d)  A determination that a principal lacks the

23  capacity to manage property as defined in s. 744.102(10)(a)

24  must be made and evidenced by the affidavit of a physician

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

26  A judicial determination that the principal lacks the capacity

27  to manage property pursuant to chapter 744 is not required

28  prior to the determination by the physician and the execution

29  of the affidavit. For purposes of this section, the physician

30  executing the affidavit must be the primary physician who has

31  responsibility for the treatment and care of the principal.

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    Florida House of Representatives - 2001                HB 1031

    757-107A-01






  1  The affidavit executed by the physician must state where the

  2  physician is licensed to practice medicine, that the physician

  3  is the primary physician who has responsibility for the

  4  treatment and care of the principal, and that the physician

  5  believes that the principal lacks the capacity to manage

  6  property as defined in s. 744.102(10)(a). The affidavit may,

  7  but need not, be in the following form:

  8

  9  STATE OF______________

10  COUNTY OF_____________

11

12         Before me, the undersigned authority, personally

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

14  affirmed that:

15         1.  Affiant is a physician licensed to practice

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

17  country)....

18         2.  Affiant is the primary physician who has

19  responsibility for the treatment and care of ...(principal's

20  name)....

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

22  inquiry, Affiant believes that the principal lacks the

23  capacity to manage property, including taking those actions

24  necessary to obtain, administer, and dispose of real and

25  personal property, intangible property, business property,

26  benefits, and income.

27         ___________

28         Affiant

29

30

31

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    Florida House of Representatives - 2001                HB 1031

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

  2  ...day of... ...(month)..., ...(year)..., by .... (name of

  3  person making statement)....

  4

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

  6

  7  ....(Print, Type, or Stamp Commissioned Name of Notary

  8  Public)....

  9

10  Personally Known OR Produced Identification

11

12  ....(Type of Identification Produced)....

13         (e)  A physician who makes a determination of

14  incapacity to manage property under paragraph (d) is not

15  subject to criminal prosecution or civil liability and is not

16  considered to have engaged in unprofessional conduct as a

17  result of making such determination. The provisions of this

18  paragraph do not apply if there is shown by a preponderance of

19  the evidence that the physician making the determination did

20  not comply in good faith with the provisions of this section.

21         (f)  A third party may not rely on the authority

22  granted in a durable power of attorney conditioned on the

23  principal's lack of capacity to manage property as defined in

24  s. 744.102(10)(a) when any affidavit presented has been

25  executed more than 6 months prior to the first presentation of

26  the durable power of attorney to the third party.

27         (g)(d)  Third parties who act in reliance upon the

28  authority granted to the attorney in fact under the durable

29  power of attorney and in accordance with the instructions of

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

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

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    Florida House of Representatives - 2001                HB 1031

    757-107A-01






  1  actions taken prior to receipt of written notice pursuant to

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

  3  to determine incapacity, partial or complete termination, or

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

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

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

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

  8  acts.

  9         (h)(e)  A durable power of attorney may provide that

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

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

12  of the durable power of attorney.

13         (5)  NOTICE.--

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

15  of revocation, notice of partial or complete termination by

16  adjudication of incapacity or by the occurrence of an event

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

18  of the principal, notice of suspension by initiation of

19  proceedings to determine incapacity or to appoint a guardian,

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

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

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

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

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

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

26  delivery as provided for service of process. Service is

27  complete when received by interested persons or entities

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

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

30  655, notice, when not mailed, must be served during regular

31  business hours upon an officer or manager of the financial

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    Florida House of Representatives - 2001                HB 1031

    757-107A-01






  1  institution at the financial institution's principal place of

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

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

  4  mail to a financial institution must be mailed to the

  5  financial institution's principal place of business in this

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

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

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

  9  14 calendar days after service to act upon that notice. In the

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

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

12         Section 2.  This act shall take effect January 1, 2002.

13

14            *****************************************

15                          SENATE SUMMARY

16    Provides for the creation of a durable power of attorney
      that will take effect at a specified future time or upon
17    the occurrence of a specified event. Prescribes
      requirements for such powers of attorney and provides a
18    statutory form. Provides immunity from criminal and civil
      liability for physicians who make a determination of
19    incapacity to manage property under certain conditions.

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