The New Florida Law on Durable Power of Attorney by Martin Zevin, PA

Protecting Yourself if You Are Incapacitated
The New Florida Law on Durable Power of Attorney

Recently, the Florida Legislature passed a new Durable Power of Attorney Act. It became effective on October 1, 2011. Any person who signs a Durable Power of Attorney after October 1, 2011 must be aware of the requirements imposed by the new law, or risk signing a Power of Attorney that does not comply and could therefore be invalid.

One of the most significant changes requires that the individual signing the Durable Power of Attorney must specifically initial certain powers in order for the Agent to be able to use the Durable Power of Attorney. This includes powers such as banking and investment transactions. You can no longer have a blanket Power of Attorney that grants unlimited powers to an Agent.

In addition, under the new law, the person or persons that you designate as your Agent must sign an acceptance with respect to all the powers contained in the Power of Attorney. Therefore, if you do the new Power of Attorney, you will need current addresses for each person whom you wish to designate, either as primary or alternate.

The new act does provide that any valid Durable Power of Attorney that was executed under Florida law before October 1, 2011 will remain valid. However, some financial institutions are already refusing to honor old Durable Power of Attorneys or requiring legal review, which can substantially delay acting under the Durable Power of Attorney. It is likely that, as more institutions become familiar with the new format, the old Powers of Attorney will be undergoing greater scrutiny and will become increasing difficult to utilize.

Therefore, many lawyers, including myself, are now recommending that clients do a new Durable Power of Attorney to avoid any future problems. Certainly, if you have never done a Durable Power of Attorney, it is extremely important that you do not attempt to do one yourself through use of office supply or internet general formats. The new Durable Power of Attorney is much too complicated to prepare without an experienced attorney.

Because the new Durable Power of Attorney Act and resulting format is more complicated and time consuming, it will almost certainly result in costing you more for the attorney’s fee than the old one executed prior to October 1, 2011.

The new law does not apply to the Designation Of Health Care Surrogate for making medical decisions or the Written Declaration, commonly known as the Living Will. These documents should remain valid if done within the last few years to comply with the Federal HIPAA Act.

If you have any doubt regarding the validity of your advanced care directives (Durable Power of Attorney, Designation of Health Care Surrogate and Living Will) you should contact an attorney for a review.

I offer a free consultation for all matters regarding Durable Power of Attorney, Designation of Health Care Surrogate, Living Will, Wills, Trusts, Probate and Estates. I also offer free consultations regarding any issues pertaining to personal injury claims or car insurance coverage.