Florida Senate - 2011                              CS for SB 670
       
       
       
       By the Committee on Judiciary; and Senator Joyner
       
       
       
       
       590-02468-11                                           2011670c1
    1                        A bill to be entitled                      
    2         An act relating to powers of attorney; providing
    3         directives to the Division of Statutory Revision;
    4         creating s. 709.2101, F.S.; providing a short title;
    5         creating s. 709.2102, F.S.; providing definitions;
    6         creating s. 709.2103, F.S.; providing applicability;
    7         providing exceptions; creating s. 709.2104, F.S.;
    8         providing for a durable power of attorney; creating s.
    9         709.2105, F.S.; specifying the qualifications for an
   10         agent; providing requirements for the execution of a
   11         power of attorney; creating s. 709.2106, F.S.;
   12         providing for the validity of powers of attorney
   13         created by a certain date or in another jurisdiction;
   14         providing for the validity of a military power of
   15         attorney; providing for the validity of a photocopy or
   16         electronic copy of a power of attorney; creating s.
   17         709.2107, F.S.; providing for the meaning and
   18         effectiveness of a power of attorney; creating s.
   19         709.2108, F.S.; specifying when a power of attorney is
   20         effective; providing limitations with respect to a
   21         future power of attorney; creating s. 709.2109, F.S.;
   22         providing for the termination or suspension of a power
   23         of attorney or an agent’s authority; creating s.
   24         709.2110, F.S.; providing for the revocation of a
   25         power of attorney; creating s. 709.2111, F.S.;
   26         providing for the designation of co-agents and
   27         successor agents; specifying the responsibility of a
   28         successor agent for a predecessor agent; authorizing a
   29         co-agent to delegate certain banking transaction to a
   30         co-agent; creating s. 709.2112, F.S.; providing for
   31         the reimbursement and compensation of agents; creating
   32         s. 709.2113, F.S.; providing for the agent’s
   33         acceptance of appointment; creating s. 709.2114, F.S.;
   34         providing for an agent’s duties; limiting an agent’s
   35         liability, absent a breach of duty; requiring that an
   36         agent make certain disclosures upon order of a court,
   37         upon the death of the principal, or under certain
   38         other circumstances; creating s. 709.2115, F.S.;
   39         providing for the exoneration of an agent; providing
   40         exceptions; creating s. 709.2116, F.S.; providing for
   41         judicial relief; authorizing the award of attorney’s
   42         fees and costs; providing for a judicial challenge to
   43         an agent’s exercise of power based on a conflict of
   44         interest; specifying the burden of proof required to
   45         overcome that challenge; creating s. 709.2117, F.S.;
   46         providing for an agent’s liability; creating s.
   47         709.2118, F.S.; providing for an agent’s resignation;
   48         creating s. 709.2119, F.S.; providing for the
   49         acceptance of and reliance upon a power of attorney;
   50         authorizing a third party to require an affidavit;
   51         providing for the validity of acts taken on behalf of
   52         a principal who is reported as missing by a branch of
   53         the United States Armed Forces; providing a
   54         restriction on the conveyance of homestead property
   55         held by such a principal; creating s. 709.2120, F.S.;
   56         providing for liability if a third person refuses to
   57         accept a power of attorney under certain
   58         circumstances; providing for an award of damages and
   59         attorney’s fees and costs; creating s. 709.2121, F.S.;
   60         requiring that notice of certain events be provided to
   61         an agent or other third person; specifying the form of
   62         the notice and when it is effective; creating s.
   63         709.2201, F.S.; providing for the authority of an
   64         agent; providing limitations; providing that an
   65         agent’s authority extends to property later acquired
   66         by the principal; creating s. 709.2202, F.S.;
   67         specifying that certain authority requires separate
   68         signed enumeration; restricting the amount of certain
   69         gifts made by an agent; specifying certain acts that
   70         do not require specific authority if the agent is
   71         authorized to conduct banking transactions; limiting
   72         the application of such provision; creating s.
   73         709.2208, F.S.; providing for authority to conduct
   74         banking and security transactions; creating s.
   75         709.2301, F.S.; specifying the role of common law;
   76         creating s. 709.2302, F.S.; providing for the
   77         preemption of laws relating to financial institutions;
   78         creating s. 709.2303, F.S.; providing for the
   79         recognition of other remedies; creating s. 709.2401,
   80         F.S.; specifying the relationship of the act to
   81         federal law regulating electronic signatures; creating
   82         s. 709.2402, F.S.; providing for powers of attorney
   83         executed before the effective date of the act;
   84         amending s. 736.0602, F.S.; conforming a cross
   85         reference; repealing s. 709.01, F.S., relating to the
   86         authority of an agent when the principal is dead;
   87         repealing s. 709.015, F.S., relating to the authority
   88         of an agent when the principal is missing; repealing
   89         s. 709.08, F.S., relating to durable powers of
   90         attorney; repealing s. 709.11, F.S., relating to a
   91         deployment-contingent power of attorney; providing an
   92         effective date.
   93  
   94  Be It Enacted by the Legislature of the State of Florida:
   95  
   96         Section 1. The Division of Statutory Revision is requested
   97  to create part I of chapter 709, Florida Statutes, consisting of
   98  ss. 709.02-709.07, entitled “POWERS OF APPOINTMENT.”
   99         Section 2. The Division of Statutory Revision is requested
  100  to create part II of chapter 709, Florida Statutes, consisting
  101  of ss. 709.2101-709.2402, entitled “POWERS OF ATTORNEY.”
  102         Section 3. Section 709.2101, Florida Statutes, is created
  103  to read:
  104         709.2101Short title.—This part may be cited as the
  105  “Florida Power of Attorney Act.”
  106         Section 4. Section 709.2102, Florida Statutes, is created
  107  to read:
  108         709.2102 Definitions.—As used in this part, the term:
  109         (1) “Agent” means a person granted authority to act for a
  110  principal under a power of attorney, whether denominated an
  111  agent, attorney in fact, or otherwise. The term includes an
  112  original agent, co-agent, and successor agent.
  113         (2) “Durablemeans, with respect to a power of attorney,
  114  not terminated by the principal’s incapacity.
  115         (3) “Electronic” means technology having electrical,
  116  digital, magnetic, wireless, optical, electromagnetic, or
  117  similar capabilities.
  118         (4) ”Financial institution” has the same meaning as in s.
  119  655.005.
  120         (5) “Incapacity” means the inability of an individual to
  121  take those actions necessary to obtain, administer, and dispose
  122  of real and personal property, intangible property, business
  123  property, benefits, and income.
  124         (6) “Knowledge” means a person has actual knowledge of the
  125  fact, has received a notice or notification of the fact, or has
  126  reason to know the fact from all other facts and circumstances
  127  known to the person at the time in question. An organization
  128  that conducts activities through employees has notice or
  129  knowledge of a fact involving a power of attorney only from the
  130  time information was received by an employee having
  131  responsibility to act on matters involving the power of
  132  attorney, or would have had if brought to the employee’s
  133  attention if the organization had exercised reasonable
  134  diligence. An organization exercises reasonable diligence if the
  135  organization maintains reasonable routines for communicating
  136  significant information to the employee having responsibility to
  137  act on matters involving the power of attorney and there is
  138  reasonable compliance with the routines. Reasonable diligence
  139  does not require an employee to communicate information unless
  140  the communication is part of the individual’s regular duties or
  141  the individual knows that a matter involving the power of
  142  attorney would be materially affected by the information.
  143         (7) “Power of attorney” means a writing that grants
  144  authority to an agent to act in the place of the principal,
  145  whether or not the term is used in that writing.
  146         (8) “Presently exercisable general power of appointment
  147  means, with respect to property or a property interest subject
  148  to a power of appointment, power exercisable at the time in
  149  question to vest absolute ownership in the principal
  150  individually, the principal’s estate, the principal’s creditors,
  151  or the creditors of the principal’s estate. The term includes a
  152  power of appointment not exercisable until the occurrence of a
  153  specified event, the satisfaction of an ascertainable standard,
  154  or the passage of a specified period only after the occurrence
  155  of the specified event, the satisfaction of the ascertainable
  156  standard, or the passage of the specified period. The term does
  157  not include a power exercisable in a fiduciary capacity or only
  158  by will.
  159         (9) “Principal” means an individual who grants authority to
  160  an agent in a power of attorney.
  161         (10) “Property” means anything that may be the subject of
  162  ownership, whether real or personal, legal or equitable, or any
  163  interest or right therein.
  164         (11) “Record” means information that is inscribed on a
  165  tangible medium or that is stored in an electronic or other
  166  medium and is retrievable in perceivable form.
  167         (12) “Sign” means having present intent to authenticate or
  168  adopt a record to:
  169         (a) Execute or adopt a tangible symbol; or
  170         (b) Attach to, or logically associate with the record an
  171  electronic sound, symbol, or process.
  172         (13) “Third person” means any person other than the
  173  principal, or the agent in the agent’s capacity as agent.
  174         Section 5. Section 709.2103, Florida Statutes, is created
  175  to read:
  176         709.2103Applicability.—This part applies to all powers of
  177  attorney except:
  178         (1) A proxy or other delegation to exercise voting rights
  179  or management rights with respect to an entity;
  180         (2) A power created on a form prescribed by a government or
  181  governmental subdivision, agency, or instrumentality for a
  182  governmental purpose;
  183         (3) A power to the extent it is coupled with an interest in
  184  the subject of the power, including a power given to or for the
  185  benefit of a creditor in connection with a credit transaction;
  186  and
  187         (4) A power created by a person other than an individual.
  188         Section 6. Section 709.2104, Florida Statutes, is created
  189  to read:
  190         709.2104Durable power of attorney.—Except as otherwise
  191  provided under this part, a power of attorney is durable if it
  192  contains the words: “This durable power of attorney is not
  193  terminated by subsequent incapacity of the principal except as
  194  provided in chapter 709, Florida Statutes,” or similar words
  195  that show the principal’s intent that the authority conferred is
  196  exercisable notwithstanding the principal’s subsequent
  197  incapacity.
  198         Section 7. Section 709.2105, Florida Statutes, is created
  199  to read:
  200         709.2105Qualifications of agent; execution of power of
  201  attorney.—
  202         (1) The agent must be a natural person who is 18 years of
  203  age or older or a financial institution that has trust powers,
  204  has a place of business in this state, and is authorized to
  205  conduct trust business in this state.
  206         (2) A power of attorney must be signed by the principal and
  207  by two subscribing witnesses and be acknowledged by the
  208  principal before a notary public or as otherwise provided in s.
  209  695.03.
  210         Section 8. Section 709.2106, Florida Statutes, is created
  211  to read:
  212         709.2106 Validity of power of attorney.—
  213         (1) A power of attorney executed on or after October 1,
  214  2011, is valid if its execution complies with s. 709.2105.
  215         (2) A power of attorney executed before October 1, 2011, is
  216  valid if its execution complied with the law of this state at
  217  the time of execution.
  218         (3) A power of attorney executed in another state which
  219  does not comply with the execution requirements of this part is
  220  valid in this state if, when the power of attorney was executed,
  221  the power of attorney and its execution complied with the law of
  222  the state of execution. A third person who is requested to
  223  accept a power of attorney that is valid in this state solely
  224  because of this subsection may in good faith request, and rely
  225  upon, without further investigation, an opinion of counsel as to
  226  any matter of law concerning the power of attorney, including
  227  the due execution and validity of the power of attorney. An
  228  opinion of counsel requested under this subsection must be
  229  provided at the principal’s expense. A third person may accept a
  230  power of attorney that is valid in this state solely because of
  231  this subsection if the agent does not provide the requested
  232  opinion of counsel, and in such case, a third person has no
  233  liability for refusing to accept the power of attorney. This
  234  subsection does not affect any other rights of a third person
  235  who is requested to accept the power of attorney under this
  236  part, or any other provisions of applicable law.
  237         (4) A military power of attorney is valid if it is executed
  238  in accordance with 10 U.S.C. s. 1044b, as amended. A deployment
  239  contingent power of attorney may be signed in advance, is
  240  effective upon the deployment of the principal, and shall be
  241  afforded full force and effect by the courts of this state.
  242         (5) Except as otherwise provided in the power of attorney,
  243  a photocopy or electronically transmitted copy of an original
  244  power of attorney has the same effect as the original.
  245         Section 9. Section 709.2107, Florida Statutes, is created
  246  to read:
  247         709.2107 Meaning and effectiveness of power of attorney.
  248  The meaning and effectiveness of a power of attorney is governed
  249  by this part if the power of attorney:
  250         (1) Is used in this state; or
  251         (2) States that it is to be governed by the laws of this
  252  state.
  253         Section 10. Section 709.2108, Florida Statutes, is created
  254  to read:
  255         709.2108 When power of attorney is effective.—
  256         (1) Except as provided in this section, a power of attorney
  257  is exercisable when executed.
  258         (2) If a power of attorney executed before October 1, 2011,
  259  is conditioned on the principal’s lack of capacity to manage
  260  property as defined in s. 744.102(12)(a), and the power of
  261  attorney has not become exercisable before that date, the power
  262  of attorney is exercisable upon the delivery of the affidavit of
  263  a physician who has primary responsibility for the treatment and
  264  care of the principal and who is licensed to practice medicine
  265  or osteopathic medicine pursuant to chapter 458 or chapter 459
  266  as of the date of the affidavit. The affidavit executed by the
  267  physician must state that the physician is licensed to practice
  268  medicine or osteopathic medicine pursuant to chapter 458 or
  269  chapter 459, that the physician is the primary physician who has
  270  responsibility for the treatment and care of the principal, and
  271  that the physician believes that the principal lacks the
  272  capacity to manage property.
  273         (3) Except as provided in subsection (2) and s.
  274  709.2106(4), a power of attorney is ineffective if the power of
  275  attorney provides that it is to become effective at a future
  276  date or upon the occurrence of a future event or contingency.
  277         Section 11. Section 709.2109, Florida Statutes, is created
  278  to read:
  279         709.2109 Termination or suspension of power of attorney or
  280  agent’s authority.—
  281         (1) A power of attorney terminates when:
  282         (a) The principal dies;
  283         (b) The principal becomes incapacitated, if the power of
  284  attorney is not durable;
  285         (c) The principal is adjudicated totally or partially
  286  incapacitated by a court, unless the court determines that
  287  certain authority granted by the power of attorney is to be
  288  exercisable by the agent;
  289         (d) The principal revokes the power of attorney;
  290         (e) The power of attorney provides that it terminates;
  291         (f) The purpose of the power of attorney is accomplished;
  292  or
  293         (g) The agent’s authority terminates and the power of
  294  attorney does not provide for another agent to act under the
  295  power of attorney.
  296         (2) An agent’s authority is exercisable until the authority
  297  terminates. An agent’s authority terminates when:
  298         (a) The agent dies, becomes incapacitated, resigns, or is
  299  removed by a court;
  300         (b) An action is filed for the dissolution or annulment of
  301  the agent’s marriage to the principal or for their legal
  302  separation, unless the power of attorney otherwise provides; or
  303         (c) The power of attorney terminates.
  304         (3) If any person initiates judicial proceedings to
  305  determine the principal’s incapacity or for the appointment of a
  306  guardian advocate, the authority granted under the power of
  307  attorney is suspended until the petition is dismissed or
  308  withdrawn or the court enters an order authorizing the agent to
  309  exercise one or more powers granted under the power of attorney.
  310         (a) If an emergency arises after initiation of proceedings
  311  to determine incapacity and before adjudication regarding the
  312  principal’s capacity, the agent may petition the court in which
  313  the proceeding is pending for authorization to exercise a power
  314  granted under the power of attorney. The petition must set forth
  315  the nature of the emergency, the property or matter involved,
  316  and the power to be exercised by the agent.
  317         (b) Notwithstanding the provisions of this section, unless
  318  otherwise ordered by the court, a proceeding to determine
  319  incapacity does not affect the authority of the agent to make
  320  health care decisions for the principal, including, but not
  321  limited to, those provided in chapter 765. If the principal has
  322  executed a health care advance directive designating a health
  323  care surrogate, the terms of the directive control if the
  324  directive and the power of attorney are in conflict unless the
  325  power of attorney is later executed and expressly states
  326  otherwise.
  327         (4) Termination or suspension of an agent’s authority or of
  328  a power of attorney is not effective as to an agent who, without
  329  knowledge of the termination or suspension, acts in good faith
  330  under the power of attorney. An act so performed, unless
  331  otherwise invalid or unenforceable, binds the principal and the
  332  principal’s successors in interest.
  333         Section 12. Section 709.2110, Florida Statutes, is created
  334  to read:
  335         709.2110 Revocation of power of attorney.—
  336         (1) A principal may revoke a power of attorney by
  337  expressing the revocation in a subsequently executed power of
  338  attorney or other writing signed by the principal. The principal
  339  may give notice of the revocation to an agent who has accepted
  340  authority under the revoked power of attorney.
  341         (2) Except as provided in subsection (1), the execution of
  342  a power of attorney does not revoke a power of attorney
  343  previously executed by the principal.
  344         Section 13. Section 709.2111, Florida Statutes, is created
  345  to read:
  346         709.2111 Co-agents and successor agents.—
  347         (1) A principal may designate two or more persons to act as
  348  co-agents. Unless the power of attorney otherwise provides, each
  349  co-agent may exercise its authority independently.
  350         (2) A principal may designate one or more successor agents
  351  to act if an agent resigns, dies, becomes incapacitated, is not
  352  qualified to serve, or declines to serve. Unless the power of
  353  attorney otherwise provides, a successor agent:
  354         (a) Has the same authority as that granted to the original
  355  agent; and
  356         (b) May not act until the predecessor agents have resigned,
  357  have died, have become incapacitated, are no longer qualified to
  358  serve, or have declined to serve.
  359         (3) Except as otherwise provided in the power of attorney
  360  and subsection (4), an agent who does not participate in or
  361  conceal a breach of fiduciary duty committed by another agent,
  362  including a predecessor agent, is not liable for the actions or
  363  omissions of the other agent.
  364         (4) An agent who has actual knowledge of a breach or
  365  imminent breach of fiduciary duty by another agent, including a
  366  predecessor agent, must take any action reasonably appropriate
  367  in the circumstances to safeguard the principal’s best
  368  interests. If the agent in good faith believes that the
  369  principal is not incapacitated, giving notice to the principal
  370  is a sufficient action. An agent who fails to take action as
  371  required by this subsection is liable to the principal for the
  372  principal’s reasonably foreseeable damages that could have been
  373  avoided if the agent had taken such action.
  374         (5) A successor agent does not have a duty to review the
  375  conduct or decisions of a predecessor agent. Except as provided
  376  in subsection (4), a successor agent does not have a duty to
  377  institute any proceeding against a predecessor agent, or to file
  378  any claim against a predecessor agent’s estate, for any of the
  379  predecessor agent’s actions or omissions as agent.
  380         (6) If a power of attorney requires that two or more
  381  persons act together as co-agents, notwithstanding the
  382  requirement that they act together, one or more of the agents
  383  may delegate to a co-agent the authority to conduct banking
  384  transactions as provided in s. 709.2208(1), whether the
  385  authority to conduct banking transactions is specifically
  386  enumerated or incorporated by reference to that section in the
  387  power of attorney.
  388         Section 14. Section 709.2112, Florida Statutes, is created
  389  to read:
  390         709.2112 Reimbursement and compensation of agent.—
  391         (1) Unless the power of attorney otherwise provides, an
  392  agent is entitled to reimbursement of expenses reasonably
  393  incurred on behalf of the principal.
  394         (2) Unless the power of attorney otherwise provides, a
  395  qualified agent is entitled to compensation that is reasonable
  396  under the circumstances.
  397         (3) Notwithstanding any provision in the power of attorney,
  398  an agent may not be paid compensation unless the agent is a
  399  qualified agent.
  400         (4) For purposes of this section, the term “qualified
  401  agent” means an agent who is the spouse of the principal, an
  402  heir of the principal within the meaning of s. 732.103, a
  403  financial institution that has trust powers and a place of
  404  business in this state, an attorney or certified public
  405  accountant who is licensed in this state, or a natural person
  406  who is a resident of this state and who has never been an agent
  407  for more than three principals at the same time.
  408         Section 15. Section 709.2113, Florida Statutes, is created
  409  to read:
  410         709.2113 Agent’s acceptance of appointment.—Except as
  411  otherwise provided in the power of attorney, a person accepts
  412  appointment as an agent by exercising authority or performing
  413  duties as an agent or by any other assertion or conduct
  414  indicating acceptance. The scope of an agent’s acceptance is
  415  limited to those aspects of the power of attorney for which the
  416  agent’s assertions or conduct reasonably manifests acceptance.
  417         Section 16. Section 709.2114, Florida Statutes, is created
  418  to read:
  419         709.2114 Agent’s duties.—
  420         (1) An agent is a fiduciary. Notwithstanding the provisions
  421  in the power of attorney, an agent who has accepted appointment:
  422         (a) Must act only within the scope of authority granted in
  423  the power of attorney. In exercising that authority, the agent:
  424         1. May not act contrary to the principal’s reasonable
  425  expectations actually known by the agent;
  426         2. Must act in good faith;
  427         3.May not act in a manner that is contrary to the
  428  principal’s best interest, except as provided in paragraph
  429  (2)(d) and s. 709.2202; and
  430         4.Must attempt to preserve the principal’s estate plan, to
  431  the extent actually known by the agent, if preserving the plan
  432  is consistent with the principal’s best interest based on all
  433  relevant factors, including:
  434         a. The value and nature of the principal’s property;
  435         b. The principal’s foreseeable obligations and need for
  436  maintenance;
  437         c. Minimization of taxes, including income, estate,
  438  inheritance, generation-skipping transfer, and gift taxes;
  439         d. Eligibility for a benefit, a program, or assistance
  440  under a statute or rule; and
  441         e. The principal’s personal history of making or joining in
  442  making gifts;
  443         (b) May not delegate authority to a third person except as
  444  provided in s. 518.112;
  445         (c) Must keep a record of all receipts, disbursements, and
  446  transactions made on behalf of the principal; and
  447         (d) Must create and maintain an accurate inventory each
  448  time the agent accesses the principal’s safe-deposit box, if the
  449  power of attorney authorizes the agent to access the box.
  450         (2) Except as otherwise provided in the power of attorney,
  451  an agent who has accepted appointment shall:
  452         (a) Act loyally for the sole benefit of the principal;
  453         (b) Act so as not to create a conflict of interest that
  454  impairs the agent’s ability to act impartially in the
  455  principal’s best interest;
  456         (c) Act with the care, competence, and diligence ordinarily
  457  exercised by agents in similar circumstances; and
  458         (d) Cooperate with a person who has authority to make
  459  health care decisions for the principal in order to carry out
  460  the principal’s reasonable expectations to the extent actually
  461  known by the agent and, otherwise, act in the principal’s best
  462  interest.
  463         (3) An agent who acts in good faith is not liable to any
  464  beneficiary of the principal’s estate plan for failure to
  465  preserve the plan.
  466         (4) If an agent is selected by the principal because of
  467  special skills or expertise possessed by the agent or in
  468  reliance on the agent’s representation that the agent has
  469  special skills or expertise, the special skills or expertise
  470  must be considered in determining whether the agent has acted
  471  with care, competence, and diligence under the circumstances.
  472         (5) Absent a breach of duty to the principal, an agent is
  473  not liable if the value of the principal’s property declines.
  474         (6) Except as otherwise provided in the power of attorney,
  475  an agent is not required to disclose receipts, disbursements,
  476  transactions conducted on behalf of the principal, or safe
  477  deposit box inventories, unless ordered by a court or requested
  478  by the principal, a court-appointed guardian, another fiduciary
  479  acting for the principal, a governmental agency having authority
  480  to protect the welfare of the principal, or, upon the death of
  481  the principal, by the personal representative or successor in
  482  interest of the principal’s estate. If requested, the agent must
  483  comply with the request within 60 days or provide a writing or
  484  other record substantiating why additional time is needed and
  485  comply with the request within an additional 60 days.
  486         Section 17. Section 709.2115, Florida Statutes, is created
  487  to read:
  488         709.2115 Exoneration of agent.—A power of attorney may
  489  provide that the agent is not liable for any acts or decisions
  490  made by the agent in good faith and under the power of attorney,
  491  except to the extent the provision:
  492         (1) Relieves the agent of liability for breach of a duty
  493  committed dishonestly, with improper motive, or with reckless
  494  indifference to the purposes of the power of attorney or the
  495  best interest of the principal; or
  496         (2) Was inserted as a result of an abuse of a confidential
  497  or fiduciary relationship with the principal.
  498         Section 18. Section 709.2116, Florida Statutes, is created
  499  to read:
  500         709.2116 Judicial relief; conflicts of interests.—
  501         (1) A court may construe or enforce a power of attorney,
  502  review the agent’s conduct, terminate the agent’s authority,
  503  remove the agent, and grant other appropriate relief.
  504         (2) The following persons may petition the court:
  505         (a) The principal or the agent, including any nominated
  506  successor agent.
  507         (b) A guardian, conservator, trustee, or other fiduciary
  508  acting for the principal or the principal’s estate.
  509         (c) A person authorized to make health care decisions for
  510  the principal if the health care of the principal is affected by
  511  the actions of the agent.
  512         (d) Any other interested person if the person demonstrates
  513  to the court’s satisfaction that the person is interested in the
  514  welfare of the principal and has a good faith belief that the
  515  court’s intervention is necessary.
  516         (e) A governmental agency having regulatory authority to
  517  protect the welfare of the principal.
  518         (f) A person asked to honor the power of attorney.
  519         (3) In any proceeding commenced by filing a petition under
  520  this section, including, but not limited to, the unreasonable
  521  refusal of a third person to allow an agent to act pursuant to
  522  the power of attorney, and in challenges to the proper exercise
  523  of authority by the agent, the court shall award reasonable
  524  attorneys fees and costs.
  525         (4) If an agent’s exercise of a power is challenged in a
  526  judicial proceeding brought by or on behalf of the principal on
  527  the grounds that the exercise of the power was affected by a
  528  conflict of interest, and evidence is presented that the agent
  529  or an affiliate of the agent had a personal interest in the
  530  exercise of the power, the agent or affiliate has the burden of
  531  proving, by clear and convincing evidence that the agent acted:
  532         (a) Solely in the interest of the principal; or
  533         (b) In good faith in the principal’s best interest, and the
  534  conflict of interest was expressly authorized in the power of
  535  attorney.
  536         (5) For purposes of subsection (4):
  537         (a) A provision authorizing an agent to engage in a
  538  transaction affected by a conflict of interest which is inserted
  539  into a power of attorney as the result of the abuse of a
  540  fiduciary or confidential relationship with the principal by the
  541  agent or the agent’s affiliate is invalid.
  542         (b) Affiliates of an agent include:
  543         1. The agent’s spouse;
  544         2. The agent’s descendants, siblings, parents, or their
  545  spouses;
  546         3. A corporation or other entity in which the agent, or a
  547  person who owns a significant interest in the agent, has an
  548  interest that might affect the agent’s best judgment;
  549         4. A person or entity that owns a significant interest in
  550  the agent; or
  551         5. The agent acting in a fiduciary capacity for someone
  552  other than the principal.
  553         Section 19. Section 709.2117, Florida Statutes, is created
  554  to read:
  555         709.2117Agent’s liability.—An agent who violates this part
  556  is liable to the principal or the principal’s successors in
  557  interest for the amount required to:
  558         (1) Restore the value of the principal’s property to what
  559  it would have been had the violation not occurred; and
  560         (2) Reimburse the principal or the principal’s successors
  561  in interest for the attorney’s fees and costs paid from the
  562  principal’s funds on the agent’s behalf in defense of the
  563  agent’s actions.
  564         Section 20. Section 709.2118, Florida Statutes, is created
  565  to read:
  566         709.2118 Agent’s resignation.—Unless the power of attorney
  567  provides a different method for an agent’s resignation, an agent
  568  may resign by giving notice to the principal, to the guardian if
  569  the principal is incapacitated and one has been appointed for
  570  the principal, and to any co-agent, or if none, the next
  571  successor agent.
  572         Section 21. Section 709.2119, Florida Statutes, is created
  573  to read:
  574         709.2119 Acceptance of and reliance upon power of
  575  attorney.—
  576         (1)(a) A third person who in good faith accepts a power of
  577  attorney that appears to be executed in accordance with this
  578  part may rely upon the power of attorney and may enforce an
  579  authorized transaction against the principal’s property as if:
  580         1. The power of attorney were genuine, valid, and still in
  581  effect;
  582         2. The agent’s authority were genuine, valid, and still in
  583  effect; and
  584         3. The authority of the officer executing for or on behalf
  585  of a financial institution that has trust powers and acting as
  586  agent is genuine, valid, and still in effect.
  587         (b) For purposes of this subsection, and without limiting
  588  what constitutes good faith, a third person does not accept a
  589  power of attorney in good faith if the third person has notice
  590  that:
  591         1. The power of attorney is void, invalid, or terminated;
  592  or
  593         2. The purported agent’s authority is void, invalid,
  594  suspended, or terminated.
  595         (2) A third person may require:
  596         (a) An agent to execute an affidavit stating where the
  597  principal is domiciled; that the principal is not deceased; that
  598  there has been no revocation, or partial or complete termination
  599  by adjudication of incapacity or by the occurrence of an event
  600  referenced in the power of attorney; that there has been no
  601  suspension by initiation of proceedings to determine incapacity,
  602  or to appoint a guardian, of the principal; and, if the affiant
  603  is a successor agent, the reasons for the unavailability of the
  604  predecessor agents, if any, at the time the authority is
  605  exercised.
  606         (b) An officer of a financial institution acting as agent
  607  to execute a separate affidavit, or include in the form of the
  608  affidavit, the officer’s title and a statement that the officer
  609  has full authority to perform all acts and enter into all
  610  transactions authorized by the power of attorney for and on
  611  behalf of the financial institution in its capacity as agent. A
  612  written affidavit executed by the agent under this subsection
  613  may, but need not, be in the following form:
  614  
  615  STATE OF............
  616  COUNTY OF............
  617  
  618         Before me, the undersigned authority, personally appeared
  619  ...(attorney in fact)... (“Affiant”), who swore or affirmed
  620  that:
  621         1. Affiant is the attorney in fact named in the Durable
  622  Power of Attorney executed by ...(principal)... (“Principal”) on
  623  ...(date)....
  624         2. This Power of Attorney is currently exercisable by
  625  Affiant. The principal is domiciled in ...(insert name of state,
  626  territory, or foreign country)....
  627         3. To the best of Affiant’s knowledge after diligent search
  628  and inquiry:
  629         a. The Principal is not deceased;
  630         b. Affiant’s authority has not been suspended by initiation
  631  of proceedings to determine incapacity or to appoint a guardian
  632  or a guardian advocate; and
  633         c. There has been no revocation, or partial or complete
  634  termination, of the power of attorney or of Affiant’s authority.
  635         4. Affiant is acting within the scope of authority granted
  636  in the power of attorney.
  637         5. Affiant is the successor to ...(insert name of
  638  predecessor agent)..., who has resigned, died, become
  639  incapacitated, is no longer qualified to serve, has declined to
  640  serve as agent, or is otherwise unable to act, if applicable.
  641         6. Affiant agrees not to exercise any powers granted by the
  642  Durable Power of Attorney if Affiant attains knowledge that it
  643  has been revoked, has been partially or completely terminated or
  644  suspended, or is no longer valid because of the death or
  645  adjudication of incapacity of the Principal.
  646  
  647  ................
  648  ...(Affiant)...
  649  
  650         Sworn to (or affirmed) and subscribed before me this ....
  651  day of ...(month)..., ...(year)..., by ...(name of person making
  652  statement)...
  653  
  654  ...(Signature of Notary Public-State of Florida)...
  655  
  656  ...(Print, Type, or Stamp Commissioned Name of Notary Public)...
  657  
  658  Personally Known OR Produced Identification
  659  ...(Type of Identification Produced)...
  660  
  661         (3) A third person who is asked to accept a power of
  662  attorney that appears to be executed in accordance with s.
  663  709.2103 may in good faith request, and rely upon, without
  664  further investigation:
  665         (a) A verified English translation of the power of attorney
  666  if the power of attorney contains, in whole or in part, language
  667  other than English;
  668         (b) An opinion of counsel as to any matter of law
  669  concerning the power of attorney if the third person making the
  670  request provides in a writing or other record the reason for the
  671  request; or
  672         (c) The affidavit described in subsection (2).
  673         (4) An English translation or an opinion of counsel
  674  requested under this section must be provided at the principal’s
  675  expense unless the request is made after the time specified in
  676  s. 709.2120(1) for acceptance or rejection of the power of
  677  attorney.
  678         (5) Third persons who act in reliance upon the authority
  679  granted to an agent and in accordance with the instructions of
  680  the agent shall be held harmless by the principal from any loss
  681  suffered or liability incurred as a result of actions taken
  682  before the receipt of notice as provided in s. 709.2121. A third
  683  person who acts in good faith upon any representation,
  684  direction, decision, or act of the agent is not liable to the
  685  principal or the principal’s estate, beneficiaries, or joint
  686  owners for those acts.
  687         (6) The acts of an agent under a power of attorney are as
  688  valid and binding on the principal or the principal’s estate as
  689  if the principal were alive and competent if, in connection with
  690  any activity pertaining to hostilities in which the United
  691  States is then engaged, the principal is officially listed or
  692  reported by a branch of the United States Armed Forces in a
  693  missing status as defined in 37 U.S.C. s. 551 or 5 U.S.C. s.
  694  5561, regardless of whether the principal is dead, alive, or
  695  incompetent. Homestead property held as tenants by the
  696  entireties may not be conveyed by a power of attorney regulated
  697  under this provision until 1 year after the first official
  698  report or listing of the principal as missing or missing in
  699  action. An affidavit of an officer of the Armed Forces having
  700  maintenance and control of the records pertaining to those
  701  missing or missing in action that the principal has been in that
  702  status for a given period is conclusive presumption of the fact.
  703         Section 22. Section 709.2120, Florida Statutes, is created
  704  to read:
  705         709.2120Refusal to accept power of attorney.—
  706         (1) Except as provided in subsection (2):
  707         (a) A third person must accept or reject a power of
  708  attorney within a reasonable time. A third person who rejects a
  709  power of attorney must state in writing the reason for the
  710  rejection.
  711         (b) Four days, excluding Saturdays, Sundays, and legal
  712  holidays, are presumed to be a reasonable time for a financial
  713  institution to accept or reject a power of attorney with respect
  714  to:
  715         1. A banking transaction, if the power of attorney
  716  expressly contains authority to conduct banking transactions
  717  pursuant to s. 709.2208(1); or
  718         2. A security transaction, if the power of attorney
  719  expressly contains authority to conduct security transactions
  720  pursuant to s. 709.2208(2).
  721         (c) A third person may not require an additional or
  722  different form of power of attorney for authority granted in the
  723  power of attorney presented.
  724         (2) A third person is not required to accept a power of
  725  attorney if:
  726         (a) The third person is not otherwise required to engage in
  727  a transaction with the principal in the same circumstances;
  728         (b) The third person has knowledge of the termination or
  729  suspension of the agent’s authority or of the power of attorney
  730  before exercising the power;
  731         (c) A timely request by the third person for an affidavit,
  732  English translation, or opinion of counsel under s. 709.2119(4)
  733  is refused by the agent;
  734         (d) Except as provided in paragraph (b), the third person
  735  believes in good faith that the power is not valid or that the
  736  agent does not have authority to perform the act requested; or
  737         (e) The third person makes, or has knowledge that another
  738  person has made, a report to the local adult protective services
  739  office stating a good faith belief that the principal may be
  740  subject to physical or financial abuse, neglect, exploitation,
  741  or abandonment by the agent or a person acting for or with the
  742  agent.
  743         (3) A third person who, in violation of this section,
  744  refuses to accept a power of attorney is subject to:
  745         (a) A court order mandating acceptance of the power of
  746  attorney; and
  747         (b) Liability for damages, including reasonable attorney’s
  748  fees and costs, incurred in any action or proceeding that
  749  confirms, for the purpose tendered, the validity of the power of
  750  attorney or mandates acceptance of the power of attorney.
  751         Section 23. Section 709.2121, Florida Statutes, is created
  752  to read:
  753         709.2121 Notice.—
  754         (1) A notice, including a notice of revocation, notice of
  755  partial or complete termination by adjudication of incapacity or
  756  by the occurrence of an event referenced in the power of
  757  attorney, notice of death of the principal, notice of suspension
  758  by initiation of proceedings to determine incapacity or to
  759  appoint a guardian, or other notice, is not effective until
  760  written notice is provided to the agent or any third persons
  761  relying upon a power of attorney.
  762         (2) Notice must be in writing and must be accomplished in a
  763  manner reasonably suitable under the circumstances and likely to
  764  result in receipt of the notice or document. Permissible methods
  765  of notice or for sending a document include first-class mail,
  766  personal delivery, delivery to the person’s last known place of
  767  residence or place of business, or a properly directed facsimile
  768  or other electronic message.
  769         (3) Notice to a financial institution must contain the
  770  name, address, and the last four digits of the principal’s
  771  taxpayer identification number and be directed to an officer or
  772  a manager of the financial institution in this state.
  773         (4) Notice is effective when given, except that notice upon
  774  a financial institution, brokerage company, or title insurance
  775  company is not effective until 5 days, excluding Saturdays,
  776  Sundays, and legal holidays, after it is received.
  777         Section 24. Section 709.2201, Florida Statutes, is created
  778  to read:
  779         709.2201Authority of agent.—
  780         (1) Except as provided in this section or other applicable
  781  law, an agent may only exercise authority specifically granted
  782  to the agent in the power of attorney and any authority
  783  reasonably necessary to give effect to that express grant of
  784  specific authority. General provisions in a power of attorney
  785  which do not identify the specific authority granted, such as
  786  provisions purporting to give the agent authority to do all acts
  787  that the principal can do, are not express grants of specific
  788  authority and do not grant any authority to the agent. Court
  789  approval is not required for any action of the agent in
  790  furtherance of an express grant of specific authority.
  791         (2) As a confirmation of the law in effect in this state
  792  when this part became effective, such authorization may include,
  793  without limitation, authority to:
  794         (a) Execute stock powers or similar documents on behalf of
  795  the principal and delegate to a transfer agent or similar person
  796  the authority to register any stocks, bonds, or other securities
  797  into or out of the principal’s or nominee’s name.
  798         (b) Convey or mortgage homestead property. However, if the
  799  principal is married, the agent may not mortgage or convey
  800  homestead property without joinder of the principal’s spouse or
  801  the spouse’s guardian. Joinder by a spouse may be accomplished
  802  by the exercise of authority in a power of attorney executed by
  803  the joining spouse, and either spouse may appoint the other as
  804  his or her agent.
  805         (c) If such authority is specifically granted in a durable
  806  power of attorney, make all health care decisions on behalf of
  807  the principal, including, but not limited to, those set forth in
  808  chapter 765.
  809         (3) Notwithstanding the provisions of this section, an
  810  agent may not:
  811         (a) Perform duties under a contract that requires the
  812  exercise of personal services of the principal;
  813         (b) Make any affidavit as to the personal knowledge of the
  814  principal;
  815         (c) Vote in any public election on behalf of the principal;
  816         (d) Execute or revoke any will or codicil for the
  817  principal; or
  818         (e) Exercise powers and authority granted to the principal
  819  as trustee or as court-appointed fiduciary.
  820         (4) Subject to s. 709.2202, if the subjects over which
  821  authority is granted in a power of attorney are similar or
  822  overlap, the broadest authority controls.
  823         (5) Authority granted in a power of attorney is exercisable
  824  with respect to property that the principal has when the power
  825  of attorney is executed and to property that the principal
  826  acquires later, whether or not the property is located in this
  827  state and whether or not the authority is exercised or the power
  828  of attorney is executed in this state.
  829         (6) An act performed by an agent pursuant to a power of
  830  attorney has the same effect and inures to the benefit of and
  831  binds the principal and the principal’s successors in interest
  832  as if the principal had performed the act.
  833         Section 25. Section 709.2202, Florida Statutes, is created
  834  to read:
  835         709.2202Authority that requires separate signed
  836  enumeration.—
  837         (1) Notwithstanding s. 709.2201, an agent may exercise the
  838  following authority only if the principal signed or initialed
  839  next to each specific enumeration of the authority, the exercise
  840  of the authority is consistent with the agent’s duties under s.
  841  709.2114, and the exercise is not otherwise prohibited by
  842  another agreement or instrument:
  843         (a) Create an inter vivos trust;
  844         (b) With respect to a trust created by or on behalf of the
  845  principal, amend, modify, revoke, or terminate the trust, but
  846  only if the trust instrument explicitly provides for amendment,
  847  modification, revocation, or termination by the settlor’s agent;
  848         (c) Make a gift, subject to subsection (3);
  849         (d) Create or change rights of survivorship;
  850         (e) Create or change a beneficiary designation;
  851         (f) Waive the principal’s right to be a beneficiary of a
  852  joint and survivor annuity, including a survivor benefit under a
  853  retirement plan; or
  854         (g) Disclaim property and powers of appointment.
  855         (2) Notwithstanding a grant of authority to do an act
  856  described in subsection (1), unless the power of attorney
  857  otherwise provides, an agent who is not an ancestor, spouse, or
  858  descendant of the principal may not exercise authority to create
  859  in the agent, or in an individual to whom the agent owes a legal
  860  obligation of support, an interest in the principal’s property,
  861  whether by gift, right of survivorship, beneficiary designation,
  862  disclaimer, or otherwise.
  863         (3) Unless the power of attorney otherwise provides, a
  864  provision in a power of attorney granting general authority with
  865  respect to gifts authorizes the agent to only:
  866         (a) Make outright to, or for the benefit of, a person a
  867  gift of any of the principal’s property, including by the
  868  exercise of a presently exercisable general power of appointment
  869  held by the principal, in an amount per donee not to exceed the
  870  annual dollar limits of the federal gift tax exclusion under 26
  871  U.S.C. s. 2503(b), as amended, without regard to whether the
  872  federal gift tax exclusion applies to the gift, or if the
  873  principal’s spouse agrees to consent to a split gift pursuant to
  874  26 U.S.C. s. 2513, as amended, in an amount per donee not to
  875  exceed twice the annual federal gift tax exclusion limit; and
  876         (b) Consent, pursuant to 26 U.S.C. s. 2513, as amended, to
  877  the splitting of a gift made by the principal’s spouse in an
  878  amount per donee not to exceed the aggregate annual gift tax
  879  exclusions for both spouses.
  880         (4) Notwithstanding subsection (1), if a power of attorney
  881  is otherwise sufficient to grant an agent authority to conduct
  882  banking transactions, as provided in s. 709.2208(1), conduct
  883  investment transactions as provided in s. 709.2208(2), or
  884  otherwise make additions to or withdrawals from an account of
  885  the principal, making a deposit to or withdrawal from an
  886  insurance policy, retirement account, individual retirement
  887  account, benefit plan, bank account, or any other account held
  888  jointly or otherwise held in survivorship or payable on death,
  889  is not considered to be a change to the survivorship feature or
  890  beneficiary designation, and no further specific authority is
  891  required for the agent to exercise such authority. A bank or
  892  other financial institution does not have a duty to inquire as
  893  to the appropriateness of the agent’s exercise of that authority
  894  and is not liable to the principal or any other person for
  895  actions taken in good faith reliance on the appropriateness of
  896  the agent’s actions. This subsection does not eliminate the
  897  agent’s fiduciary duties to the principal with respect to any
  898  exercise of the power of attorney.
  899         (5) This section does not apply to a power of attorney
  900  executed before October 1, 2011.
  901         Section 26. Section 709.2208, Florida Statutes, is created
  902  to read:
  903         709.2208 Banks and other financial institutions.—
  904         (1) A power of attorney that includes the statement that
  905  the agent has “authority to conduct banking transactions as
  906  provided in section 709.2208(1), Florida Statutes” grants
  907  general authority to the agent to engage in the following
  908  transactions with financial institutions without additional
  909  specific enumeration in the power of attorney:
  910         (a) Establish, continue, modify, or terminate an account or
  911  other banking arrangement with a financial institution.
  912         (b) Contract for services available from a financial
  913  institution, including renting a safe-deposit box or space in a
  914  vault.
  915         (c) Withdraw, by check, order, electronic funds transfer,
  916  or otherwise, money or property of the principal deposited with
  917  or left in the custody of a financial institution.
  918         (d) Receive statements of account, vouchers, notices, and
  919  similar documents from a financial institution and act with
  920  respect to them.
  921         (e) Purchase cashier’s checks, official checks, counter
  922  checks, bank drafts, money orders, and similar instruments.
  923         (f) Endorse and negotiate checks, cashier’s checks,
  924  official checks, drafts, and other negotiable paper of the
  925  principal or payable to the principal or the principal’s order,
  926  transfer money, receive the cash or other proceeds of those
  927  transactions, and accept a draft drawn by a person upon the
  928  principal and pay it when due.
  929         (g) Apply for, receive, and use debit cards, electronic
  930  transaction authorizations, and traveler’s checks from a
  931  financial institution.
  932         (h) Use, charge, or draw upon any line of credit, credit
  933  card, or other credit established by the principal with a
  934  financial institution.
  935         (i) Consent to an extension of the time of payment with
  936  respect to commercial paper or a financial transaction with a
  937  financial institution.
  938         (2) A power of attorney that specifically includes the
  939  statement that the agent has “authority to conduct investment
  940  transactions as provided in section 709.2208(2), Florida
  941  Statutes” grants general authority to the agent with respect to
  942  securities held by financial institutions to take the following
  943  actions without additional specific enumeration in the power of
  944  attorney:
  945         (a) Buy, sell, and exchange investment instruments.
  946         (b) Establish, continue, modify, or terminate an account
  947  with respect to investment instruments.
  948         (c) Pledge investment instruments as security to borrow,
  949  pay, renew, or extend the time of payment of a debt of the
  950  principal.
  951         (d) Receive certificates and other evidences of ownership
  952  with respect to investment instruments.
  953         (e) Exercise voting rights with respect to investment
  954  instruments in person or by proxy, enter into voting trusts, and
  955  consent to limitations on the right to vote.
  956         (f) Sell commodity futures contracts and call and put
  957  options on stocks and stock indexes.
  958  
  959  For purposes of this subsection, the term “investment
  960  instruments” means stocks, bonds, mutual funds, and all other
  961  types of securities and financial instruments, whether held
  962  directly, indirectly, or in any other manner, including shares
  963  or interests in a private investment fund, including, but not
  964  limited to, a private investment fund organized as a limited
  965  partnership, a limited liability company, a statutory or common
  966  law business trust, a statutory trust, or a real estate
  967  investment trust, joint venture, or any other general or limited
  968  partnership; derivatives or other interests of any nature in
  969  securities such as options, options on futures, and variable
  970  forward contracts; mutual funds; common trust funds; money
  971  market funds; hedge funds; private equity or venture capital
  972  funds; insurance contracts; and other entities or vehicles
  973  investing in securities or interests in securities whether
  974  registered or otherwise, except commodity futures contracts and
  975  call and put options on stocks and stock indexes.
  976         Section 27. Section 709.2301, Florida Statutes, is created
  977  to read:
  978         709.2301 Principles of law and equity.—The common law of
  979  agency and principles of equity supplement this part, except as
  980  modified by this part or other state law.
  981         Section 28. Section 709.2302, Florida Statutes, is created
  982  to read:
  983         709.2302 Laws applicable to financial institutions and
  984  entities.—This part does not supersede any other law applicable
  985  to financial institutions or other entities, and that law
  986  controls if inconsistent with this part.
  987         Section 29. Section 709.2303, Florida Statutes, is created
  988  to read:
  989         709.2303 Remedies under other law.—The remedies under this
  990  part are not exclusive and do not abrogate any right or remedy
  991  under any other law other than this part.
  992         Section 30. Section 709.2401, Florida Statutes, is created
  993  to read:
  994         709.2401 Relation to electronic signatures in federal law.
  995  This part modifies, limits, and supersedes the federal
  996  Electronic Signatures in Global and National Commerce Act, 15
  997  U.S.C. s. 7001 et seq., but does not modify, limit, or supersede
  998  s. 101(c) of that act, or authorize electronic delivery of any
  999  of the notices described in s. 103(b) of that act.
 1000         Section 31. Section 709.2402, Florida Statutes, is created
 1001  to read:
 1002         709.2402 Effect on existing powers of attorney.—Except as
 1003  otherwise provided in this part:
 1004         (1) This part applies to a power of attorney created
 1005  before, on, or after October 1, 2011, and to acts of the agent
 1006  occurring on or after that date.
 1007         (2) An act of the agent occurring before October 1, 2011,
 1008  is not affected by this part.
 1009         Section 32. Subsection (5) of section 736.0602, Florida
 1010  Statutes, is amended to read:
 1011         736.0602 Revocation or amendment of revocable trust.—
 1012         (5) A settlor’s powers with respect to revocation,
 1013  amendment, or distribution of trust property may be exercised by
 1014  an agent under a power of attorney only as authorized by s.
 1015  709.2202 709.08.
 1016         Section 33. Sections 709.01, 709.015, 709.08, and 709.11
 1017  Florida Statutes, are repealed.
 1018         Section 34. This act shall take effect October 1, 2011.