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Florida’s New Power of Attorney Act Eliminates Springing Powers of Attorney

December 23rd, 2014

Posted in Asset Protection,Estate & Personal Planning

A power of attorney is a written instrument pursuant to which an individual (the “principal”) grants to another (the “agent”) the authority to act on behalf of the principal, primarily for financial and business matters.  Powers of attorney and similar instruments are governed by Chapter 709 of the Florida Statutes, also known as the Florida Power of Attorney Act (FPOAA).

Before the enactment of the FPOAA, a power of attorney could be made effective upon execution.  Additionally, a “springing” power of attorney could be made effective only in the event a principal became incapacitated.  When the FPOAA was enacted, the laws concerning powers of attorney were significantly revised in that springing powers of attorney were no longer allowed after October 1, 2011.  The FPOAA contains a grandfather clause that allows springing powers of attorney that were signed prior to October 1, 2011.

Clients often ask why the FPOAA barred springing powers of attorney.  In 2006, the Uniform Law Commission of the National Conference of Commissioners on Uniform State Laws completed a Uniform Power of Attorney Act (UPOAA).  According to the Florida Senate’s staff analysis concerning the FPOAA, the Legislature sought to conform Florida’s power of attorney law to the UPOAA with some modifications to achieve greater consistency among state laws.

Fortunately, there are options available to those who wish not to have a power of attorney become effective upon execution but to take effect until they are deemed incapacitated.  If you have any questions or concerns about the new law and its effect on your current documents, you should contact a licensed Florida attorney who can assist you.

 

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