Florida Durable POA Affidavit Law


Power of Attorney and Health Care – General – Florida

709.08 Durable power of attorney.

(1) CREATION OF DURABLE POWER OF ATTORNEY. A durable power of attorney is a written power of attorney by which a principal designates another as the principal’s attorney in fact. The durable power of attorney must be in writing, must be executed with the same formalities required for the conveyance of real property by Florida law, and must contain the words: “This durable power of attorney is not affected by subsequent incapacity of the principal except as provided in s. 709.08, Florida Statutes”; or similar words that show the principal’s intent that the authority conferred is exercisable notwithstanding the principal’s subsequent incapacity, except as otherwise provided by this section. The durable power of attorney is exercisable as of the date of execution; however, if the durable power of attorney is conditioned upon the principal’s lack of capacity to manage property as defined in s. 744.102(10)(a), the durable power of attorney is exercisable upon the delivery of affidavits in paragraphs (4)(c) and (d) to the third party.

(2) WHO MAY SERVE AS ATTORNEY IN FACT. The attorney in fact must be a natural person who is 18 years of age or older and is of sound mind, or a financial institution, as defined in chapter 655, with trust powers, having a place of business in this state and authorized to conduct trust business in this state. A not-for-profit corporation, organized for charitable or religious purposes in this state, which has qualified as a court-appointed guardian prior to January 1, 1996, and which is a tax-exempt organization under 26 U.S.C. s. 501(c)(3), may also act as an attorney in fact. Notwithstanding any contrary clause in the written power of attorney, no assets of the principal may be used for the benefit of the corporate attorney in fact, or its officers or directors.

(3) EFFECT OF DELEGATION, REVOCATION, OR FILING OF PETITION TO DETERMINE INCAPACITY.

(a) A durable power of attorney is nondelegable except as permitted in subparagraph (7)(a)1.

(b) The attorney in fact may exercise the authority granted under a durable power of attorney until the principal dies, revokes the power, or is adjudicated totally or partially incapacitated by a court of competent jurisdiction, unless the court determines that certain authority granted by the durable power of attorney is to remain exercisable by the attorney in fact.

(c)

1. If any person or entity initiates proceedings in any court of competent jurisdiction to determine the principal’s incapacity, the authority granted under the durable power of attorney is suspended until the petition is dismissed or withdrawn. Notice of the petition must be served upon all attorneys in fact named in any power of attorney which is known to the petitioner.

2. If an emergency arises after initiation of proceedings to determine incapacity and before adjudication regarding the principal’s capacity, the attorney in fact may petition the court in which the proceeding is pending for authorization to exercise a power granted under the durable power of attorney. The petition must set forth the nature of the emergency, the property or matter involved, and the power to be exercised by the attorney in fact.

3. Notwithstanding the provisions of this section, a proceeding to determine incapacity must not affect any authority of the attorney in fact to make health care decisions for the principal, including, but not limited to, those defined in chapter 765, unless otherwise ordered by the court. If the principal has executed a health care advance directive designating a health care surrogate pursuant to chapter 765, the terms of the directive will control if the two documents are in conflict unless the durable power of attorney is later executed and expressly states otherwise.

(4) PROTECTION WITHOUT NOTICE; GOOD FAITH ACTS; AFFIDAVITS.

(a) Any third party may rely upon the authority granted in a durable power of attorney that is not conditioned on the principal’s lack of capacity to manage property until the third party has received notice as provided in subsection (5). A third party may, but need not, require the attorney in fact to execute an affidavit pursuant to paragraph (c).

(b) Any third party may rely upon the authority granted in a durable power of attorney that is conditioned on the principal’s lack of capacity to manage property as defined in s. 744.102(10)(a) only after receiving the affidavits provided in paragraphs (c) and (d), and such reliance shall end when the third party has received notice as provided in subsection (5).

(c) An affidavit executed by the attorney in fact must state where the principal is domiciled, that the principal is not deceased, and that there has been no revocation, partial or complete termination by adjudication of incapacity or by the occurrence of an event referenced in the durable power of attorney, or suspension by initiation of proceedings to determine incapacity or to appoint a guardian of the durable power of attorney at the time the power of attorney is exercised. See Form.

(Type of Identification Produced)

(e) A physician who makes a determination of incapacity to manage property under paragraph (d) is not subject to criminal prosecution or civil liability and is not considered to have engaged in unprofessional conduct as a result of making such determination, unless it is shown by a preponderance of the evidence that the physician making the determination did not comply in good faith with the provisions of this section.

(f) A third party may not rely on the authority granted in a durable power of attorney conditioned on the principal’s lack of capacity to manage property as defined in s. 744.102(10)(a) when any affidavit presented has been executed more than 6 months prior to the first presentation of the durable power of attorney to the third party.

(g) Third parties who act in reliance upon the authority granted to the attorney in fact under the durable power of attorney and in accordance with the instructions of the attorney in fact must be held harmless by the principal from any loss suffered or liability incurred as a result of actions taken prior to receipt of written notice pursuant to subsection (5). A person who acts in good faith upon any representation, direction, decision, or act of the attorney in fact is not liable to the principal or the principal’s estate, beneficiaries, or joint owners for those acts.

(h) A durable power of attorney may provide that the attorney in fact is not liable for any acts or decisions made by the attorney in fact in good faith and under the terms of the durable power of attorney.

(5) NOTICE.

(a) A notice, including, but not limited to, a notice of revocation, notice of partial or complete termination by adjudication of incapacity or by the occurrence of an event referenced in the durable power of attorney, notice of death of the principal, notice of suspension by initiation of proceedings to determine incapacity or to appoint a guardian, or other notice, is not effective until written notice is served upon the attorney in fact or any third persons relying upon a durable power of attorney.

(b) Notice must be in writing and served on the person or entity to be bound by the notice. Service may be by any form of mail that requires a signed receipt or by personal delivery as provided for service of process. Service is complete when received by interested persons or entities specified in this section and in chapter 48, where applicable. In the case of a financial institution as defined in chapter 655, notice, when not mailed, must be served during regular business hours upon an officer or manager of the financial institution at the financial institution’s principal place of business in Florida and its office where the power of attorney or account was presented, handled, or administered. Notice by mail to a financial institution must be mailed to the financial institution’s principal place of business in this state and its office where the power of attorney or account was presented, handled, or administered. Except for service of court orders, a third party served with notice must be given 14 calendar days after service to act upon that notice. In the case of a financial institution, notice must be served before the occurrence of any of the events described in s. 674.303.

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