Posts Tagged ‘power of attorney’

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Florida’s New ‘Power of Attorney’ Law

Thursday, August 25th, 2011

Ever executed a Power of Attorney (POA), or are you considering having one done in the future?   Are you about to become the agent for someone signing a POA?  Either way, you’ll want to make sure the attorney drafting the form is aware of the new changes in Florida’s POA law.  The new POA law goes into effect October 1, 2011.

The new law can be found in Chapter 709, Florida Statutes.

Some of the new aspects of the law include:

  • Defining terms (such as “agent”, “durable”, “incapacity”, “power of attorney”, and others)
  • Changes WHEN some POA’s can become effective.  Springing Powers of Attorney are no longer valid.  (A Springing POA is one that does not become effective UNTIL the principal becomes incapacitated.)
  • Adds new provisions to deal with reimbursement and compensation.
  • Provides more detail on the duties of an agent, including mandatory duties that cannot be waived, and default duties that can be waived.
  • Clarifies the authority of agents.  An agent may only exercise the authority specifically granted in the POA and any authority reasonably necessary to effectuate the express authority granted in the POA.

The new POA law, although making some broad changes, left certain aspects of the law unchanged.  For example:

  • The execution of a POA is still the same.  The POA must be signed by the principal and by two witnesses and be acknowledged by the principal before a notary public.
  • The qualifications of the agent remain the same.  The agent must be a natural person who is 18 years of age or older, or a financial institution that has trust powers, has a place of business in Florida, and is authorized to conduct trust business in Florida.

(Disclaimer: This post is not intended as legal advice nor does it create an attorney-client relationship.)

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Exploitation of an Elderly Person

Monday, June 13th, 2011

The Florida Second DCA released an opinion last week dealing with the criminal charge of Exploitation of an Elderly Person.  The case name is Guarscio v. State (2D08-5000) and the full opinion can be read here.

In this matter, the Court found the state’s evidence insufficient to prove Exploitation of an Elderly Person.  This case represents some of the dangers a person accepts when becoming a health care surrogate or power of attorney.  If it is discovered that the elderly person’s finances are in disarray, it is quite possible the state will look to the surrogate/power of attorney for responsibility.  In the Guarscio case, the Court found that although “the refinancings were not a good idea…that is a far cry from proof that they were accomplished by Guarscio’s deception or intimidation of her grandmother.”

This case is a good case for Florida defense attorneys because it makes the State prove its allegations, and not rely on inferences or sympathy.

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