Recent Developments

Florida amended its power of attorney law. Since most folks living in high tax decoupled states (e.g. NY, NJ…) claim to live in Florida J this change in law will affect more than just Floridians.

Powers must be signed by the principal and by two subscribing witnesses and be acknowledged by the principal before a notary public. 709.2105. Powers signed before 10/1/11 will be grandfathered.  A power executed in another state which does not comply with the new Florida execution requirements is valid if, when the power of attorney was executed, it complied with the law of the state of execution. A third person who is requested to accept such a power may in good faith request, and rely upon, without further investigation, an opinion of counsel as to any matter of law concerning the power of attorney. 709.2106. Might this mean that any bank or person in Florida asked to accept a power prepared in, for example NY, will only do so if they are provided a legal opinion that the power was valid in NY? Yep. Might that make the cost and time delays of using a NY power in Florida significant. Yep. Does that mean that if you’re a New Yorker wintering in Florida you might want to have a Florida compliant power just in case of an emergency? Yep.

Powers signed on or after Oct. 1, 2011 may not be contingent on some future event (e.g., incapacity of the maker). Powers signed prior to 10/1/11 are grandfathered but catch this:  a springing power (conditioned on the principal’s lack of capacity) is only exercisable upon delivery of an affidavit of a physician that must state: (1) the physician is licensed to practice under chapter 458/459 (what’s that mean to a NY doc?); (2) the physician is the “primary physician who has responsibility for the treatment and care of the principal”; and (3) the principal lacks “the capacity to manage property.” 709.2108. What doc will be comfortable signing that? How much time will this take? When a Yankee fan hangs out in Marlin territory they might want to get a Florida power to avoid this.

See Chapter 709, Florida Statutes, ss. 709.2101–709.2402.  Thanks to Benjamin P. Shenkman, Esq. Wellington, FL.

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