Florida Durable Power of Attorney Law

Power of Attorney and Health Care – General – Florida

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A durable power of attorney is a written power of attorney by which a principal designates another as the principal’s attorney in fact. A 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 ยง709.08, Florida Statutes”; or similar words that show the principal’s intent that the authority conferred is exercisable notwithstanding the principal’s subsequent incapacity.

A durable power of attorney is exercisable as of the date of execution.

An 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 durable power of attorney is generally nondelegable.

An 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. In the event of a court determination of total or partial incapacity, the court may determine that certain authority granted by the durable power of attorney is to remain exercisable by the attorney in fact.

A third party may rely upon the authority granted in a durable power of attorney until the third party has received notice of the total or partial termination of the power of attorney. Until a third party has received notice of revocation, the third party may act in reliance upon the authority granted in the durable power of attorney.

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.

Unless otherwise stated in the durable power of attorney, the durable power of attorney applies to any interest in property owned by the principal.

Except as otherwise limited by law or by a durable power of attorney, the attorney in fact has full authority to perform every act authorized and specifically enumerated in a durable power of attorney.

An attorney in fact may not:

Perform duties under a contract that requires the exercise of personal services of the principal;

Make any affidavit as to the personal knowledge of the principal;

Vote in any public election on behalf of the principal;

Execute or revoke any will or codicil for the principal;

Create, amend, modify, or revoke any document or other disposition effective at the principal’s death or transfer assets to an existing trust created by the principal unless expressly authorized by the power of attorney; or

Exercise powers and authority granted to the principal as trustee or as court appointed fiduciary.

If specifically granted in the durable power of attorney, the attorney in fact may make health care decisions on behalf of the principal, including, but not limited to, those set forth in chapter 765.

An attorney in fact is a fiduciary who must observe the standards of care applicable to trustees. An attorney in fact is not liable to third parties for any act pursuant to the durable power of attorney if the act was authorized at the time. If the exercise of the power is improper, the attorney in fact is liable to interested persons for damage or loss resulting from a breach of fiduciary duty by the attorney in fact to the same extent as the trustee of an express trust.

Unless the durable power of attorney provides otherwise:

If a durable power of attorney is vested jointly in two attorneys in fact by the same instrument, concurrence of both is required on all acts in the exercise of the power.

If a durable power of attorney is vested jointly in three or more attorneys in fact by the same instrument, concurrence of a majority is required in all acts in the exercise of the power.

An attorney in fact who has not concurred in the exercise of authority is not liable to the principal or any other person for the consequences of the exercise.

If the attorney in fact has accepted appointment either expressly in writing or by acting under the power, the attorney in fact is not excused from liability for failure either to participate in the administration of assets subject to the power or for failure to attempt to prevent a breach of fiduciary obligations thereunder.

Unless the durable power of attorney provides otherwise, all authority vested in multiple attorneys in fact may be exercised by the one or more that remain after the death, resignation, or incapacity of one or more of the multiple attorneys in fact.

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Inside Florida Durable Power of Attorney Law