Bill Text: FL H0815 | 2011 | Regular Session | Comm Sub

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Bill Title: Powers of Attorney

Spectrum: Bipartisan Bill

Status: (Introduced - Dead) 2011-05-03 - Laid on Table, companion bill(s) passed, see CS/SB 670 (Ch. [H0815 Detail]

Download: Florida-2011-H0815-Comm_Sub.html

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CS/CS/HB 815

1	A bill to be entitled
2	An act relating to powers of attorney; providing
3	directives to the Division of Statutory Revision; creating
4	s. 709.2101, F.S.; providing a short title; creating s.
5	709.2102, F.S.; providing definitions; creating s.
6	709.2103, F.S.; providing applicability; providing
7	exceptions; creating s. 709.2104, F.S.; providing for a
8	durable power of attorney; creating s. 709.2105, F.S.;
9	specifying the qualifications for an agent; providing
10	requirements for the execution of a power of attorney;
11	creating s. 709.2106, F.S.; providing for the validity of
12	powers of attorney created by a certain date or in another
13	jurisdiction; providing for the validity of a military
14	power of attorney; providing for the validity of a
15	photocopy or electronic copy of a power of attorney;
16	creating s. 709.2107, F.S.; providing for the meaning and
17	effectiveness of a power of attorney; creating s.
18	709.2108, F.S.; specifying when a power of attorney is
19	effective; providing limitations with respect to a future
20	power of attorney; creating s. 709.2109, F.S.; providing
21	for the termination or suspension of a power of attorney
22	or an agent's authority; creating s. 709.2110, F.S.;
23	providing for the revocation of a power of attorney;
24	creating s. 709.2111, F.S.; providing for the designation
25	of co-agents and successor agents; specifying the
26	responsibility of a successor agent for a predecessor
27	agent; authorizing a co-agent to delegate certain banking
28	transaction to a co-agent; creating s. 709.2112, F.S.;
29	providing for the reimbursement and compensation of
30	agents; creating s. 709.2113, F.S.; providing for the
31	agent's acceptance of appointment; creating s. 709.2114,
32	F.S.; providing for an agent's duties; limiting an agent's
33	liability, absent a breach of duty; requiring that an
34	agent make certain disclosures upon order of a court, upon
35	the death of the principal, or under certain other
36	circumstances; creating s. 709.2115, F.S.; providing for
37	the exoneration of an agent; providing exceptions;
38	creating s. 709.2116, F.S.; providing for judicial relief;
39	authorizing the award of attorney's fees and costs;
40	providing for a judicial challenge to an agent's exercise
41	of power based on a conflict of interest; specifying the
42	burden of proof required to overcome that challenge;
43	creating s. 709.2117, F.S.; providing for an agent's
44	liability; creating s. 709.2118, F.S.; providing for an
45	agent's resignation; creating s. 709.2119, F.S.; providing
46	for the acceptance of and reliance upon a power of
47	attorney; authorizing a third party to require an
48	affidavit; providing for the validity of acts taken on
49	behalf of a principal who is reported as missing by a
50	branch of the United States Armed Forces; providing a
51	restriction on the conveyance of homestead property held
52	by such a principal; creating s. 709.2120, F.S.; providing
53	for liability if a third person refuses to accept a power
54	of attorney under certain circumstances; providing for an
55	award of damages and attorney's fees and costs; creating
56	s. 709.2121, F.S.; requiring that notice of certain events
57	be provided to an agent or other third person; specifying
58	the form of the notice and when it is effective; creating
59	s. 709.2201, F.S.; providing for the authority of an
60	agent; providing limitations; providing that an agent's
61	authority extends to property later acquired by the
62	principal; creating s. 709.2202, F.S.; specifying that
63	certain authority requires separate signed enumeration;
64	restricting the amount of certain gifts made by an agent;
65	specifying certain acts that do not require specific
66	authority if the agent is authorized to conduct banking
67	transactions; limiting the application of such provision;
68	creating s. 709.2208, F.S.; providing for authority to
69	conduct banking and security transactions; creating s.
70	709.2301, F.S.; specifying the role of common law;
71	creating s. 709.2302, F.S.; providing for the preemption
72	of laws relating to financial institutions; creating s.
73	709.2303, F.S.; providing for the recognition of other
74	remedies; creating s. 709.2401, F.S.; specifying the
75	relationship of the act to federal law regulating
76	electronic signatures; creating s. 709.2402, F.S.;
77	providing for powers of attorney executed on or after the
78	effective date of the act; amending s. 736.0602, F.S.;
79	conforming a cross-reference; repealing s. 709.01, F.S.,
80	relating to the authority of an agent when the principal
81	is dead; repealing s. 709.015, F.S., relating to the
82	authority of an agent when the principal is missing;
83	repealing s. 709.08, F.S., relating to durable powers of
84	attorney; repealing s. 709.11, F.S., relating to a
85	deployment-contingent power of attorney; providing an
86	effective date.
87
88	Be It Enacted by the Legislature of the State of Florida:
89
90	Section 1.  The Division of Statutory Revision is requested
91	to create part I of chapter 709, Florida Statutes, consisting of
92	ss. 709.02-709.07, entitled "POWERS OF APPOINTMENT."
93	Section 2.  The Division of Statutory Revision is requested
94	to create part II of chapter 709, Florida Statutes, consisting
95	of ss. 709.2101-709.2402, entitled "POWERS OF ATTORNEY."
96	Section 3.  Section 709.2101, Florida Statutes, is created
97	to read:
98	709.2101  Short title.-This part may be cited as the
99	"Florida Power of Attorney Act."
100	Section 4.  Section 709.2102, Florida Statutes, is created
101	to read:
102	709.2102  Definitions.-As used in this part, the term:
103	(1)  "Agent" means a person granted authority to act for a
104	principal under a power of attorney, whether denominated an
105	agent, attorney in fact, or otherwise. The term includes an
106	original agent, co-agent, and successor agent.
107	(2)  "Durable" means, with respect to a power of attorney,
108	not terminated by the principal's incapacity.
109	(3)  "Electronic" means technology having electrical,
110	digital, magnetic, wireless, optical, electromagnetic, or
111	similar capabilities.
112	(4)  "Financial institution" has the same meaning as in s.
113	655.005.
114	(5)  "Incapacity" means the inability of an individual to
115	take those actions necessary to obtain, administer, and dispose
116	of real and personal property, intangible property, business
117	property, benefits, and income.
118	(6)  "Knowledge" means a person has actual knowledge of the
119	fact, has received a notice or notification of the fact, or has
120	reason to know the fact from all other facts and circumstances
121	known to the person at the time in question. An organization
122	that conducts activities through employees has notice or
123	knowledge of a fact involving a power of attorney only from the
124	time information was received by an employee having
125	responsibility to act on matters involving the power of
126	attorney, or would have had if brought to the employee's
127	attention if the organization had exercised reasonable
128	diligence. An organization exercises reasonable diligence if the
129	organization maintains reasonable routines for communicating
130	significant information to the employee having responsibility to
131	act on matters involving the power of attorney and there is
132	reasonable compliance with the routines. Reasonable diligence
133	does not require an employee to communicate information unless
134	the communication is part of the individual's regular duties or
135	the individual knows that a matter involving the power of
136	attorney would be materially affected by the information.
137	(7)  "Power of attorney" means a writing that grants
138	authority to an agent to act in the place of the principal,
139	whether or not the term is used in that writing.
140	(8)  "Presently exercisable general power of appointment"
141	means, with respect to property or a property interest subject
142	to a power of appointment, power exercisable at the time in
143	question to vest absolute ownership in the principal
144	individually, the principal's estate, the principal's creditors,
145	or the creditors of the principal's estate. The term includes a
146	power of appointment not exercisable until the occurrence of a
147	specified event, the satisfaction of an ascertainable standard,
148	or the passage of a specified period only after the occurrence
149	of the specified event, the satisfaction of the ascertainable
150	standard, or the passage of the specified period. The term does
151	not include a power exercisable in a fiduciary capacity or only
152	by will.
153	(9)  "Principal" means an individual who grants authority
154	to an agent in a power of attorney.
155	(10)  "Property" means anything that may be the subject of
156	ownership, whether real or personal, legal or equitable, or any
157	interest or right therein.
158	(11)  "Record" means information that is inscribed on a
159	tangible medium or that is stored in an electronic or other
160	medium and is retrievable in perceivable form.
161	(12)  "Sign" means having present intent to authenticate or
162	adopt a record to:
163	(a)  Execute or adopt a tangible symbol; or
164	(b)  Attach to, or logically associate with the record an
165	electronic sound, symbol, or process.
166	(13)  "Third person" means any person other than the
167	principal, or the agent in the agent's capacity as agent.
168	Section 5.  Section 709.2103, Florida Statutes, is created
169	to read:
170	709.2103  Applicability.-This part applies to all powers of
171	attorney except:
172	(1)  A proxy or other delegation to exercise voting rights
173	or management rights with respect to an entity;
174	(2)  A power created on a form prescribed by a government
175	or governmental subdivision, agency, or instrumentality for a
176	governmental purpose;
177	(3)  A power to the extent it is coupled with an interest
178	in the subject of the power, including a power given to or for
179	the benefit of a creditor in connection with a credit
180	transaction; and
181	(4)  A power created by a person other than an individual.
182	Section 6.  Section 709.2104, Florida Statutes, is created
183	to read:
184	709.2104  Durable power of attorney.-Except as otherwise
185	provided under this part, a power of attorney is durable if it
186	contains the words: "This durable power of attorney is not
187	terminated by subsequent incapacity of the principal except as
188	provided in chapter 709, Florida Statutes," or similar words
189	that show the principal's intent that the authority conferred is
190	exercisable notwithstanding the principal's subsequent
191	incapacity.
192	Section 7.  Section 709.2105, Florida Statutes, is created
193	to read:
194	709.2105  Qualifications of agent; execution of power of
195	attorney.-
196	(1)  The agent must be a natural person who is 18 years of
197	age or older or a financial institution that has trust powers,
198	has a place of business in this state, and is authorized to
199	conduct trust business in this state.
200	(2)  A power of attorney must be signed by the principal
201	and by two subscribing witnesses and be acknowledged by the
202	principal before a notary public or as otherwise provided in s.
203	695.03.
204	Section 8.  Section 709.2106, Florida Statutes, is created
205	to read:
206	709.2106  Validity of power of attorney.-
207	(1)  A power of attorney executed on or after October 1,
208	2011, is valid if its execution complies with s. 709.2105.
209	(2)  A power of attorney executed before October 1, 2011,
210	is valid if its execution complied with the law of this state at
211	the time of execution.
212	(3)  A power of attorney executed in another state which
213	does not comply with the execution requirements of this part is
214	valid in this state if, when the power of attorney was executed,
215	the power of attorney and its execution complied with the law of
216	the state of execution. A third person who is requested to
217	accept a power of attorney that is valid in this state solely
218	because of this subsection may in good faith request, and rely
219	upon, without further investigation, an opinion of counsel as to
220	any matter of law concerning the power of attorney, including
221	the due execution and validity of the power of attorney. An
222	opinion of counsel requested under this subsection must be
223	provided at the principal's expense. A third person may accept a
224	power of attorney that is valid in this state solely because of
225	this subsection if the agent does not provide the requested
226	opinion of counsel, and in such case, a third person has no
227	liability for refusing to accept the power of attorney. This
228	subsection does not affect any other rights of a third person
229	who is requested to accept the power of attorney under this
230	part, or any other provisions of applicable law.
231	(4)  A military power of attorney is valid if it is
232	executed in accordance with 10 U.S.C. s. 1044b, as amended. A
233	deployment-contingent power of attorney may be signed in
234	advance, is effective upon the deployment of the principal, and
235	shall be afforded full force and effect by the courts of this
236	state.
237	(5)  Except as otherwise provided in the power of attorney,
238	a photocopy or electronically transmitted copy of an original
239	power of attorney has the same effect as the original.
240	Section 9.  Section 709.2107, Florida Statutes, is created
241	to read:
242	709.2107  Meaning and effectiveness of power of attorney.-
243	The meaning and effectiveness of a power of attorney is governed
244	by this part if the power of attorney:
245	(1)  Is used in this state; or
246	(2)  States that it is to be governed by the laws of this
247	state.
248	Section 10.  Section 709.2108, Florida Statutes, is created
249	to read:
250	709.2108  When power of attorney is effective.-
251	(1)  Except as provided in this section, a power of
252	attorney is exercisable when executed.
253	(2)  If a power of attorney executed before October 1,
254	2011, is conditioned on the principal's lack of capacity, and
255	the power of attorney has not become exercisable before that
256	date, the power of attorney is exercisable upon the delivery of
257	the affidavit of a physician who has primary responsibility for
258	the treatment and care of the principal and who is licensed to
259	practice medicine pursuant to chapter 458 or chapter 459 as of
260	the date of the affidavit. The affidavit must state where the
261	physician is licensed to practice medicine, that the physician
262	is the primary physician who has responsibility for the
263	treatment and care of the principal, and that the physician
264	believes that the principal lacks the capacity to manage
265	property.
266	(3)  Except as provided in subsection (2) and section
267	709.2106(4), a power of attorney is ineffective if the power of
268	attorney provides that it is to become effective at a future
269	date or upon the occurrence of a future event or contingency.
270	Section 11.  Section 709.2109, Florida Statutes, is created
271	to read:
272	709.2109  Termination or suspension of power of attorney or
273	agent's authority.-
274	(1)  A power of attorney terminates when:
275	(a)  The principal dies;
276	(b)  The principal becomes incapacitated, if the power of
277	attorney is not durable;
278	(c)  The principal is adjudicated totally or partially
279	incapacitated by a court, unless the court determines that
280	certain authority granted by the power of attorney is to be
281	exercisable by the agent;
282	(d)  The principal revokes the power of attorney;
283	(e)  The power of attorney provides that it terminates;
284	(f)  The purpose of the power of attorney is accomplished;
285	or
286	(g)  The agent's authority terminates and the power of
287	attorney does not provide for another agent to act under the
288	power of attorney.
289	(2)  An agent's authority is exercisable until the
290	authority terminates. An agent's authority terminates when:
291	(a)  The agent dies, becomes incapacitated, resigns, or is
292	removed by a court;
293	(b)  An action is filed for the dissolution or annulment of
294	the agent's marriage to the principal or for their legal
295	separation, unless the power of attorney otherwise provides; or
296	(c)  The power of attorney terminates.
297	(3)  If any person initiates judicial proceedings to
298	determine the principal's incapacity or for the appointment of a
299	guardian advocate, the authority granted under the power of
300	attorney is suspended until the petition is dismissed or
301	withdrawn or the court enters an order authorizing the agent to
302	exercise one or more powers granted under the power of attorney.
303	(a)  If an emergency arises after initiation of proceedings
304	to determine incapacity and before adjudication regarding the
305	principal's capacity, the agent may petition the court in which
306	the proceeding is pending for authorization to exercise a power
307	granted under the power of attorney. The petition must set forth
308	the nature of the emergency, the property or matter involved,
309	and the power to be exercised by the agent.
310	(b)  Notwithstanding the provisions of this section, unless
311	otherwise ordered by the court, a proceeding to determine
312	incapacity does not affect the authority of the agent to make
313	health care decisions for the principal, including, but not
314	limited to, those provided in chapter 765. If the principal has
315	executed a health care advance directive designating a health
316	care surrogate, the terms of the directive control if the
317	directive and the power of attorney are in conflict unless the
318	power of attorney is later executed and expressly states
319	otherwise.
320	(4)  Termination or suspension of an agent's authority or
321	of a power of attorney is not effective as to an agent who,
322	without knowledge of the termination or suspension, acts in good
323	faith under the power of attorney. An act so performed, unless
324	otherwise invalid or unenforceable, binds the principal and the
325	principal's successors in interest.
326	Section 12.  Section 709.2110, Florida Statutes, is created
327	to read:
328	709.2110  Revocation of power of attorney.-
329	(1)  A principal may revoke a power of attorney by
330	expressing the revocation in a subsequently executed power of
331	attorney or other writing signed by the principal. The principal
332	may give notice of the revocation to an agent who has accepted
333	authority under the revoked power of attorney.
334	(2)  Except as provided in subsection (1), the execution of
335	a power of attorney does not revoke a power of attorney
336	previously executed by the principal.
337	Section 13.  Section 709.2111, Florida Statutes, is created
338	to read:
339	709.2111  Co-agents and successor agents.-
340	(1)  A principal may designate two or more persons to act
341	as co-agents. Unless the power of attorney otherwise provides,
342	each co-agent may exercise its authority independently.
343	(2)  A principal may designate one or more successor agents
344	to act if an agent resigns, dies, becomes incapacitated, is not
345	qualified to serve, or declines to serve. Unless the power of
346	attorney otherwise provides, a successor agent:
347	(a)  Has the same authority as that granted to the original
348	agent; and
349	(b)  May not act until the predecessor agents have
350	resigned, have died, have become incapacitated, are no longer
351	qualified to serve, or have declined to serve.
352	(3)  Except as otherwise provided in the power of attorney
353	and subsection (4), an agent who does not participate in or
354	conceal a breach of fiduciary duty committed by another agent,
355	including a predecessor agent, is not liable for the actions or
356	omissions of the other agent.
357	(4)  An agent who has actual knowledge of a breach or
358	imminent breach of fiduciary duty by another agent, including a
359	predecessor agent, must take any action reasonably appropriate
360	in the circumstances to safeguard the principal's best
361	interests. If the agent in good faith believes that the
362	principal is not incapacitated, giving notice to the principal
363	is a sufficient action. An agent who fails to take action as
364	required by this subsection is liable to the principal for the
365	principal's reasonably foreseeable damages that could have been
366	avoided if the agent had taken such action.
367	(5)  A successor agent does not have a duty to review the
368	conduct or decisions of a predecessor agent. Except as provided
369	in subsection (4), a successor agent does not have a duty to
370	institute any proceeding against a predecessor agent, or to file
371	any claim against a predecessor agent's estate, for any of the
372	predecessor agent's actions or omissions as agent.
373	(6)  If a power of attorney requires that two or more
374	persons act together as co-agents, notwithstanding the
375	requirement that they act together, one or more of the agents
376	may delegate to a co-agent the authority to conduct banking
377	transactions as provided in s. 709.2208(1), whether the
378	authority to conduct banking transactions is specifically
379	enumerated or incorporated by reference to that section in the
380	power of attorney.
381	Section 14.  Section 709.2112, Florida Statutes, is created
382	to read:
383	709.2112  Reimbursement and compensation of agent.-
384	(1)  Unless the power of attorney otherwise provides, an
385	agent is entitled to reimbursement of expenses reasonably
386	incurred on behalf of the principal.
387	(2)  Unless the power of attorney otherwise provides, a
388	qualified agent is entitled to compensation that is reasonable
389	under the circumstances.
390	(3)  Notwithstanding any provision in the power of
391	attorney, an agent may not be paid compensation unless the agent
392	is a qualified agent.
393	(4)  For purposes of this section, the term "qualified
394	agent" means an agent who is the spouse of the principal, an
395	heir of the principal within the meaning of s. 732.103, a
396	financial institution that has trust powers and a place of
397	business in this state, an attorney or certified public
398	accountant who is licensed in this state, or a natural person
399	who is a resident of this state and who has never been an agent
400	for more than three principals at the same time.
401	Section 15.  Section 709.2113, Florida Statutes, is created
402	to read:
403	709.2113  Agent's acceptance of appointment.-Except as
404	otherwise provided in the power of attorney, a person accepts
405	appointment as an agent by exercising authority or performing
406	duties as an agent or by any other assertion or conduct
407	indicating acceptance. The scope of an agent's acceptance is
408	limited to those aspects of the power of attorney for which the
409	agent's assertions or conduct reasonably manifests acceptance.
410	Section 16.  Section 709.2114, Florida Statutes, is created
411	to read:
412	709.2114  Agent's duties.-
413	(1)  An agent is a fiduciary. Notwithstanding the
414	provisions in the power of attorney, an agent who has accepted
415	appointment:
416	(a)  Must act only within the scope of authority granted in
417	the power of attorney. In exercising that authority, the agent:
418	1.  May not act contrary to the principal's reasonable
419	expectations actually known by the agent;
420	2.  Must act in good faith;
421	3.  May not act in a manner that is contrary to the
422	principal's best interest, except as provided in paragraph
423	(2)(d) and s. 709.2202; and
424	4.  To the extent actually known by the agent, must attempt
425	to preserve the principal's estate plan if preserving the plan
426	is consistent with the principal's best interest based on all
427	relevant factors, including:
428	a.  The value and nature of the principal's property;
429	b.  The principal's foreseeable obligations and need for
430	maintenance;
431	c.  Minimization of taxes, including income, estate,
432	inheritance, generation-skipping transfer, and gift taxes;
433	d.  Eligibility for a benefit, a program, or assistance
434	under a statute or rule; and
435	e.  The principal's personal history of making or joining
436	in making gifts;
437	(b)  May not delegate authority to a third person except as
438	provided in s. 518.112;
439	(c)  Must keep a record of all receipts, disbursements, and
440	transactions made on behalf of the principal; and
441	(d)  Must create and maintain an accurate inventory each
442	time the agent accesses the principal's safe-deposit box, if the
443	power of attorney authorizes the agent to access the box.
444	(2)  Except as otherwise provided in the power of attorney,
445	an agent who has accepted appointment shall:
446	(a)  Act loyally for the sole benefit of the principal;
447	(b)  Act so as not to create a conflict of interest that
448	impairs the agent's ability to act impartially in the
449	principal's best interest;
450	(c)  Act with the care, competence, and diligence
451	ordinarily exercised by agents in similar circumstances; and
452	(d)  Cooperate with a person who has authority to make
453	health care decisions for the principal in order to carry out
454	the principal's reasonable expectations to the extent actually
455	known by the agent and, otherwise, act in the principal's best
456	interest.
457	(3)  An agent who acts in good faith is not liable to any
458	beneficiary of the principal's estate plan for failure to
459	preserve the plan.
460	(4)  If an agent is selected by the principal because of
461	special skills or expertise possessed by the agent or in
462	reliance on the agent's representation that the agent has
463	special skills or expertise, the special skills or expertise
464	must be considered in determining whether the agent has acted
465	with care, competence, and diligence under the circumstances.
466	(5)  Absent a breach of duty to the principal, an agent is
467	not liable if the value of the principal's property declines.
468	(6)  Except as otherwise provided in the power of attorney,
469	an agent is not required to disclose receipts, disbursements,
470	transactions conducted on behalf of the principal, or safe-
471	deposit box inventories, unless ordered by a court or requested
472	by the principal, a court-appointed guardian, another fiduciary
473	acting for the principal, a governmental agency having authority
474	to protect the welfare of the principal, or, upon the death of
475	the principal, by the personal representative or successor in
476	interest of the principal's estate. If requested, the agent must
477	comply with the request within 60 days or provide a writing or
478	other record substantiating why additional time is needed and
479	comply with the request within an additional 60 days.
480	Section 17.  Section 709.2115, Florida Statutes, is created
481	to read:
482	709.2115  Exoneration of agent.-A power of attorney may
483	provide that the agent is not liable for any acts or decisions
484	made by the agent in good faith and under the power of attorney,
485	except to the extent the provision:
486	(1)  Relieves the agent of liability for breach of a duty
487	committed dishonestly, with improper motive, or with reckless
488	indifference to the purposes of the power of attorney or the
489	best interest of the principal; or
490	(2)  Was inserted as a result of an abuse of a confidential
491	or fiduciary relationship with the principal.
492	Section 18.  Section 709.2116, Florida Statutes, is created
493	to read:
494	709.2116  Judicial relief; conflicts of interests.-
495	(1)  A court may construe or enforce a power of attorney,
496	review the agent's conduct, terminate the agent's authority,
497	remove the agent, and grant other appropriate relief.
498	(2)  The following persons may petition the court:
499	(a)  The principal or the agent, including any nominated
500	successor agent.
501	(b)  A guardian, conservator, trustee, or other fiduciary
502	acting for the principal or the principal's estate.
503	(c)  A person authorized to make health care decisions for
504	the principal if the health care of the principal is affected by
505	the actions of the agent.
506	(d)  Any other interested person if the person demonstrates
507	to the court's satisfaction that the person is interested in the
508	welfare of the principal and has a good faith belief that the
509	court's intervention is necessary.
510	(e)  A governmental agency having regulatory authority to
511	protect the welfare of the principal.
512	(f)  A person asked to honor the power of attorney.
513	(3)  In any proceeding commenced by filing a petition under
514	this section, including, but not limited to, the unreasonable
515	refusal of a third person to allow an agent to act pursuant to
516	the power of attorney, and in challenges to the proper exercise
517	of authority by the agent, the court shall award reasonable
518	attorney's fees and costs.
519	(4)  If an agent's exercise of a power is challenged in a
520	judicial proceeding brought by or on behalf of the principal on
521	the grounds that the exercise of the power was affected by a
522	conflict of interest, and evidence is presented that the agent
523	or an affiliate of the agent had a personal interest in the
524	exercise of the power, the agent or affiliate has the burden of
525	proving, by clear and convincing evidence that the agent acted:
526	(a)  Solely in the interest of the principal; or
527	(b)  In good faith in the principal's best interest, and
528	the conflict of interest was expressly authorized in the power
529	of attorney.
530	(5)  For purposes of subsection (4):
531	(a)  A provision authorizing an agent to engage in a
532	transaction affected by a conflict of interest which is inserted
533	into a power of attorney as the result of the abuse of a
534	fiduciary or confidential relationship with the principal by the
535	agent or the agent's affiliate is invalid.
536	(b)  Affiliates of an agent include:
537	1.  The agent's spouse;
538	2.  The agent's descendants, siblings, parents, or their
539	spouses;
540	3.  A corporation or other entity in which the agent, or a
541	person who owns a significant interest in the agent, has an
542	interest that might affect the agent's best judgment;
543	4.  A person or entity that owns a significant interest in
544	the agent; or
545	5.  The agent acting in a fiduciary capacity for someone
546	other than the principal.
547	Section 19.  Section 709.2117, Florida Statutes, is created
548	to read:
549	709.2117  Agent's liability.-An agent who violates this
550	part is liable to the principal or the principal's successors in
551	interest for the amount required to:
552	(1)  Restore the value of the principal's property to what
553	it would have been had the violation not occurred; and
554	(2)  Reimburse the principal or the principal's successors
555	in interest for the attorney's fees and costs paid from the
556	principal's funds on the agent's behalf in defense of the
557	agent's actions.
558	Section 20.  Section 709.2118, Florida Statutes, is created
559	to read:
560	709.2118  Agent's resignation.-Unless the power of attorney
561	provides a different method for an agent's resignation, an agent
562	may resign by giving notice to the principal, to the guardian if
563	the principal is incapacitated and one has been appointed for
564	the principal, and to any co-agent, or if none, the next
565	successor agent.
566	Section 21.  Section 709.2119, Florida Statutes, is created
567	to read:
568	709.2119  Acceptance of and reliance upon power of
569	attorney.-
570	(1)(a)  A third person who in good faith accepts a power of
571	attorney executed in the manner required by existing law at the
572	time of its execution may rely upon the power of attorney and
573	the actions of the agent that are reasonably within the scope of
574	the agent's authority and may enforce any obligation created by
575	the actions of the agent as if:
576	1.  The power of attorney were genuine, valid, and still in
577	effect;
578	2.  The agent's authority were genuine, valid, and still in
579	effect; and
580	3.  The authority of the officer executing for or on behalf
581	of a financial institution that has trust powers and acting as
582	agent is genuine, valid, and still in effect.
583	(b)  For purposes of this subsection, and without limiting
584	what constitutes good faith, a third person does not accept a
585	power of attorney in good faith if the third person has notice
586	that:
587	1.  The power of attorney is void, invalid, or terminated;
588	or
589	2.  The purported agent's authority is void, invalid,
590	suspended, or terminated.
591	(2)  A third person may require:
592	(a)  An agent to execute an affidavit stating where the
593	principal is domiciled; that the principal is not deceased; that
594	there has been no revocation, or partial or complete termination
595	by adjudication of incapacity or by the occurrence of an event
596	referenced in the power of attorney; that there has been no
597	suspension by initiation of proceedings to determine incapacity,
598	or to appoint a guardian, of the principal; and, if the affiant
599	is a successor agent, the reasons for the unavailability of the
600	predecessor agents, if any, at the time the authority is
601	exercised.
602	(b)  An officer of a financial institution acting as agent
603	to execute a separate affidavit, or include in the form of the
604	affidavit, the officer's title and a statement that the officer
605	has full authority to perform all acts and enter into all
606	transactions authorized by the power of attorney for and on
607	behalf of the financial institution in its capacity as agent. A
608	written affidavit executed by the agent under this subsection
609	may, but need not, be in the following form:
610
611	STATE OF............
612	COUNTY OF............
613
614	Before me, the undersigned authority, personally appeared
615	...(attorney in fact)... ("Affiant"), who swore or affirmed
616	that:
617	1.  Affiant is the attorney in fact named in the Durable
618	Power of Attorney executed by ...(principal)... ("Principal") on
619	...(date)....
620	2.  This Power of Attorney is currently exercisable by
621	Affiant. The principal is domiciled in ...(insert name of state,
622	territory, or foreign country)....
623	3.  To the best of the Affiant's knowledge after diligent
624	search and inquiry:
625	a.  The Principal is not deceased;
626	b.  Affiant's authority has not been suspended by
627	initiation of proceedings to determine incapacity or to appoint
628	a guardian or a guardian advocate; and
629	c.  There has been no revocation, or partial or complete
630	termination, of the power of attorney or of the Affiant's
631	authority.
632	4.  The Affiant is acting within the scope of authority
633	granted in the power of attorney.
634	5.  The Affiant is the successor to ...(insert name of
635	predecessor agent)..., who has resigned, died, become
636	incapacitated, is no longer qualified to serve, has declined to
637	serve as agent, or is otherwise unable to act, if applicable.
638	6.  Affiant agrees not to exercise any powers granted by
639	the Durable Power of Attorney if Affiant attains knowledge that
640	it has been revoked, has been partially or completely terminated
641	or suspended, or is no longer valid because of the death or
642	adjudication of incapacity of the Principal.
643
644	................
645	...(Affiant)...
646
647	Sworn to (or affirmed) and subscribed before me this ....
648	day of ...(month)..., ...(year)..., by ...(name of person making
649	statement)...
650
651	...(Signature of Notary Public-State of Florida)...
652
653	...(Print, Type, or Stamp Commissioned Name of Notary Public)...
654
655	Personally Known OR Produced Identification
656	...(Type of Identification Produced)...
657
658	(3)  A third person who is asked to accept a power of
659	attorney that appears to be executed in accordance with s.
660	709.2103 may in good faith request, and rely upon, without
661	further investigation:
662	(a)  A verified English translation of the power of
663	attorney if the power of attorney contains, in whole or in part,
664	language other than English;
665	(b)  An opinion of counsel as to any matter of law
666	concerning the power of attorney if the third person making the
667	request provides in a writing or other record the reason for the
668	request; or
669	(c)  The affidavit described in subsection (2).
670	(4)  An English translation or an opinion of counsel
671	requested under this section must be provided at the principal's
672	expense unless the request is made after the time specified in
673	s. 709.2120(1) for acceptance or rejection of the power of
674	attorney.
675	(5)  Third persons who act in reliance upon the authority
676	granted to an agent and in accordance with the instructions of
677	the agent shall be held harmless by the principal from any loss
678	suffered or liability incurred as a result of actions taken
679	before the receipt of written notice as provided in s. 709.2121.
680	A third person who acts in good faith upon any representation,
681	direction, decision, or act of the agent is not liable to the
682	principal or the principal's estate, beneficiaries, or joint
683	owners for those acts.
684	(6)  The acts of an agent under a power of attorney are as
685	valid and binding on the principal or the principal's estate as
686	if the principal were alive and competent if, in connection with
687	any activity pertaining to hostilities in which the United
688	States is then engaged, the principal is officially listed or
689	reported by a branch of the United States Armed Forces in a
690	missing status as defined in 37 U.S.C. s. 551 or 5 U.S.C. s.
691	5561, regardless of whether the principal is dead, alive, or
692	incompetent. Homestead property held as tenants by the
693	entireties may not be conveyed by a power of attorney regulated
694	under this provision until 1 year after the first official
695	report or listing of the principal as missing or missing in
696	action. An affidavit of an officer of the Armed Forces having
697	maintenance and control of the records pertaining to those
698	missing or missing in action that the principal has been in that
699	status for a given period is conclusive presumption of the fact.
700	Section 22.  Section 709.2120, Florida Statutes, is created
701	to read:
702	709.2120  Refusal to accept power of attorney.-
703	(1)  Except as provided in subsection (2):
704	(a)  A third person must accept or reject a power of
705	attorney within a reasonable time. A third person who rejects a
706	power of attorney must state in writing the reason for the
707	rejection.
708	(b)  Four days, excluding Saturdays, Sundays, and legal
709	holidays, are presumed to be a reasonable time for a financial
710	institution to accept or reject a power of attorney with respect
711	to:
712	1.  A banking transaction, if the power of attorney
713	expressly contains authority to conduct banking transactions
714	pursuant to s. 709.2208(1); or
715	2.  A security transaction, if the power of attorney
716	expressly contains authority to conduct security transactions
717	pursuant to s. 709.2208(2).
718	(c)  A third person may not require an additional or
719	different form of power of attorney for authority granted in the
720	power of attorney presented.
721	(2)  A third person is not required to accept a power of
722	attorney if:
723	(a)  The third person is not otherwise required to engage
724	in a transaction with the principal in the same circumstances;
725	(b)  The third person has knowledge of the termination or
726	suspension of the agent's authority or of the power of attorney
727	before exercising the power;
728	(c)  A timely request by the third person for an affidavit,
729	English translation, or opinion of counsel under s. 709.2119(4)
730	is refused by the agent;
731	(d)  Except as provided in paragraph (b), the third person
732	believes in good faith that the power is not valid or that the
733	agent does not have authority to perform the act requested; or
734	(e)  The third person makes, or has knowledge that another
735	person has made, a report to the local adult protective services
736	office stating a good faith belief that the principal may be
737	subject to physical or financial abuse, neglect, exploitation,
738	or abandonment by the agent or a person acting for or with the
739	agent.
740	(3)  A third person who, in violation of this section,
741	refuses to accept a power of attorney is subject to:
742	(a)  A court order mandating acceptance of the power of
743	attorney; and
744	(b)  Liability for damages, including reasonable attorney's
745	fees and costs, incurred in any action or proceeding that
746	confirms, for the purpose tendered, the validity of the power of
747	attorney or mandates acceptance of the power of attorney.
748	Section 23.  Section 709.2121, Florida Statutes, is created
749	to read:
750	709.2121  Notice.-
751	(1)  A notice, including a notice of revocation, notice of
752	partial or complete termination by adjudication of incapacity or
753	by the occurrence of an event referenced in the power of
754	attorney, notice of death of the principal, notice of suspension
755	by initiation of proceedings to determine incapacity or to
756	appoint a guardian, or other notice, is not effective until
757	written notice is provided to the agent or any third persons
758	relying upon a power of attorney.
759	(2)  Notice must be in writing and must be accomplished in
760	a manner reasonably suitable under the circumstances and likely
761	to result in receipt of the notice or document. Permissible
762	methods of notice or for sending a document include first-class
763	mail, personal delivery, delivery to the person's last known
764	place of residence or place of business, or a properly directed
765	facsimile or other electronic message.
766	(3)  Notice to a financial institution must contain the
767	name, address, and the last four digits of the principal's
768	taxpayer identification number and be directed to an officer or
769	a manager of the financial institution in this state.
770	(4)  Notice is effective when given, except that notice
771	upon a financial institution, brokerage company, or title
772	insurance company is not effective until 5 days, excluding
773	Saturdays, Sundays, and legal holidays, after it is received.
774	Section 24.  Section 709.2201, Florida Statutes, is created
775	to read:
776	709.2201  Authority of agent.-
777	(1)  Except as provided in this section or other applicable
778	law, an agent may only exercise authority specifically granted
779	to the agent in the power of attorney and any authority
780	reasonably necessary to give effect to that express grant of
781	specific authority. General provisions in a power of attorney
782	which do not identify the specific authority granted, such as
783	provisions purporting to give the agent authority to do all acts
784	that the principal can do, is not an express grant of specific
785	authority and does not grant any authority to the agent. Court
786	approval is not required for any action of the agent in
787	furtherance of an express grant of specific authority.
788	(2)  As a confirmation of the law in effect in this state
789	when this part became effective, such authorization may include,
790	without limitation, authority to:
791	(a)  Execute stock powers or similar documents on behalf of
792	the principal and delegate to a transfer agent or similar person
793	the authority to register any stocks, bonds, or other securities
794	into or out of the principal's or nominee's name.
795	(b)  Convey or mortgage homestead property. However, if the
796	principal is married, the agent may not mortgage or convey
797	homestead property without joinder of the principal's spouse or
798	the spouse's guardian. Joinder by a spouse may be accomplished
799	by the exercise of authority in a power of attorney executed by
800	the joining spouse, and either spouse may appoint the other as
801	his or her agent.
802	(c)  If such authority is specifically granted in a durable
803	power of attorney, make all health care decisions on behalf of
804	the principal, including, but not limited to, those set forth in
805	chapter 765.
806	(3)  Notwithstanding the provisions of this section, an
807	agent may not:
808	(a)  Perform duties under a contract that requires the
809	exercise of personal services of the principal;
810	(b)  Make any affidavit as to the personal knowledge of the
811	principal;
812	(c)  Vote in any public election on behalf of the
813	principal;
814	(d)  Execute or revoke any will or codicil for the
815	principal; or
816	(e)  Exercise powers and authority granted to the principal
817	as trustee or as court-appointed fiduciary.
818	(4)  Subject to s. 709.2202, if the subjects over which
819	authority is granted in a power of attorney are similar or
820	overlap, the broadest authority controls.
821	(5)  Authority granted in a power of attorney is
822	exercisable with respect to property that the principal has when
823	the power of attorney is executed and to property that the
824	principal acquires later, whether or not the property is located
825	in this state and whether or not the authority is exercised or
826	the power of attorney is executed in this state.
827	(6)  An act performed by an agent pursuant to a power of
828	attorney has the same effect and inures to the benefit of and
829	binds the principal and the principal's successors in interest
830	as if the principal had performed the act.
831	Section 25.  Section 709.2202, Florida Statutes, is created
832	to read:
833	709.2202  Authority that requires separate signed
834	enumeration.-
835	(1)  Notwithstanding s. 709.2201, an agent may exercise the
836	following authority only if the principal signed or initialed
837	next to each specific enumeration of the authority, the exercise
838	of the authority is consistent with the agent's duties under s.
839	709.2114, and the exercise is not otherwise prohibited by
840	another agreement or instrument:
841	(a)  Create an inter vivos trust;
842	(b)  With respect to a trust created by or on behalf of the
843	principal, amend, modify, revoke, or terminate the trust, but
844	only if the trust instrument explicitly provides for amendment,
845	modification, revocation, or termination by the settlor's agent;
846	(c)  Make a gift, subject to subsection (3);
847	(d)  Create or change rights of survivorship;
848	(e)  Create or change a beneficiary designation;
849	(f)  Waive the principal's right to be a beneficiary of a
850	joint and survivor annuity, including a survivor benefit under a
851	retirement plan; or
852	(g)  Disclaim property and powers of appointment.
853	(2)  Notwithstanding a grant of authority to do an act
854	described in subsection (1), unless the power of attorney
855	otherwise provides, an agent who is not an ancestor, spouse, or
856	descendant of the principal may not exercise authority to create
857	in the agent, or in an individual to whom the agent owes a legal
858	obligation of support, an interest in the principal's property,
859	whether by gift, right of survivorship, beneficiary designation,
860	disclaimer, or otherwise.
861	(3)  Unless the power of attorney otherwise provides, a
862	provision in a power of attorney granting general authority with
863	respect to gifts authorizes the agent to only:
864	(a)  Make outright to, or for the benefit of, a person a
865	gift of any of the principal's property, including by the
866	exercise of a presently exercisable general power of appointment
867	held by the principal, in an amount per donee not to exceed the
868	annual dollar limits of the federal gift tax exclusion under 26
869	U.S.C. s. 2503(b), as amended, without regard to whether the
870	federal gift tax exclusion applies to the gift, or if the
871	principal's spouse agrees to consent to a split gift pursuant to
872	26 U.S.C. s. 2513, as amended, in an amount per donee not to
873	exceed twice the annual federal gift tax exclusion limit; and
874	(b)  Consent, pursuant to 26 U.S.C. s. 2513, as amended, to
875	the splitting of a gift made by the principal's spouse in an
876	amount per donee not to exceed the aggregate annual gift tax
877	exclusions for both spouses.
878	(4)  Notwithstanding subsection (1), if a power of attorney
879	is otherwise sufficient to grant an agent authority to conduct
880	banking transactions, as provided in s. 709.2208(1), conduct
881	investment transactions as provided in s. 709.2208(2), or
882	otherwise make additions to or withdrawals from an account of
883	the principal, making a deposit to or withdrawal from an
884	insurance policy, retirement account, individual retirement
885	account, benefit plan, bank account, or any other account held
886	jointly or otherwise held in survivorship or payable on death,
887	is not considered to be a change to the survivorship feature or
888	beneficiary designation, and no further specific authority is
889	required for the agent to exercise such authority. A bank or
890	other financial institution does not have a duty to inquire as
891	to the appropriateness of the agent's exercise of that authority
892	and is not liable to the principal or any other person for
893	actions taken in good faith reliance on the appropriateness of
894	the agent's actions. This subsection does not eliminate the
895	agent's fiduciary duties to the principal with respect to any
896	exercise of the power of attorney.
897	(5)  This section does not apply to a power of attorney
898	executed before October 1, 2011.
899	Section 26.  Section 709.2208, Florida Statutes, is created
900	to read:
901	709.2208  Banks and other financial institutions.-
902	(1)  A power of attorney that includes the statement that
903	the agent has "authority to conduct banking transactions as
904	provided in section 709.2208(1), Florida Statutes" grants
905	general authority to the agent to engage in the following
906	transactions with financial institutions without additional
907	specific enumeration in the power of attorney:
908	(a)  Establish, continue, modify, or terminate an account
909	or other banking arrangement with a financial institution.
910	(b)  Contract for services available from a financial
911	institution, including renting a safe-deposit box or space in a
912	vault.
913	(c)  Withdraw, by check, order, electronic funds transfer,
914	or otherwise, money or property of the principal deposited with
915	or left in the custody of a financial institution.
916	(d)  Receive statements of account, vouchers, notices, and
917	similar documents from a financial institution and act with
918	respect to them.
919	(e)  Purchase cashier's checks, official checks, counter
920	checks, bank drafts, money orders, and similar instruments.
921	(f)  Endorse and negotiate checks, cashier's checks,
922	official checks, drafts, and other negotiable paper of the
923	principal or payable to the principal or the principal's order,
924	transfer money, receive the cash or other proceeds of those
925	transactions, and accept a draft drawn by a person upon the
926	principal and pay it when due.
927	(g)  Apply for, receive, and use debit cards, electronic
928	transaction authorizations, and traveler's checks from a
929	financial institution.
930	(h)  Use, charge, or draw upon any line of credit, credit
931	card, or other credit established by the principal with a
932	financial institution.
933	(i)  Consent to an extension of the time of payment with
934	respect to commercial paper or a financial transaction with a
935	financial institution.
936	(2)  A power of attorney that specifically includes the
937	statement that the agent has "authority to conduct investment
938	transactions as provided in section 709.2208(2), Florida
939	Statutes" grants general authority to the agent with respect to
940	securities held by financial institutions to take the following
941	actions without additional specific enumeration in the power of
942	attorney:
943	(a)  Buy, sell, and exchange investment instruments.
944	(b)  Establish, continue, modify, or terminate an account
945	with respect to investment instruments.
946	(c)  Pledge investment instruments as security to borrow,
947	pay, renew, or extend the time of payment of a debt of the
948	principal.
949	(d)  Receive certificates and other evidences of ownership
950	with respect to investment instruments.
951	(e)  Exercise voting rights with respect to investment
952	instruments in person or by proxy, enter into voting trusts, and
953	consent to limitations on the right to vote.
954	(f)  Sell commodity futures contracts and call and put
955	options on stocks and stock indexes.
956
957	For purposes of this subsection, the term "investment
958	instruments" means stocks, bonds, mutual funds, and all other
959	types of securities and financial instruments, whether held
960	directly, indirectly, or in any other manner, including shares
961	or interests in a private investment fund, including, but not
962	limited to, a private investment fund organized as a limited
963	partnership, a limited liability company, a statutory or common
964	law business trust, a statutory trust, or a real estate
965	investment trust, joint venture, or any other general or limited
966	partnership; derivatives or other interests of any nature in
967	securities such as options, options on futures, and variable
968	forward contracts; mutual funds; common trust funds; money
969	market funds; hedge funds; private equity or venture capital
970	funds; insurance contracts; and other entities or vehicles
971	investing in securities or interests in securities whether
972	registered or otherwise, except commodity futures contracts and
973	call and put options on stocks and stock indexes.
974	Section 27.  Section 709.2301, Florida Statutes, is created
975	to read:
976	709.2301  Principles of law and equity.-The common law of
977	agency and principles of equity supplement this part, except as
978	modified by this part or other state law.
979	Section 28.  Section 709.2302, Florida Statutes, is created
980	to read:
981	709.2302  Laws applicable to financial institutions and
982	entities.-This part does not supersede any other law applicable
983	to financial institutions or other entities, and that law
984	controls if inconsistent with this part.
985	Section 29.  Section 709.2303, Florida Statutes, is created
986	to read:
987	709.2303  Remedies under other law.-The remedies under this
988	part are not exclusive and do not abrogate any right or remedy
989	under any other law other than this part.
990	Section 30.  Section 709.2401, Florida Statutes, is created
991	to read:
992	709.2401  Relation to electronic signatures in federal
993	law.-This part modifies, limits, and supersedes the federal
994	Electronic Signatures in Global and National Commerce Act, 15
995	U.S.C. s. 7001 et seq., but does not modify, limit, or supersede
996	s. 101(c) of that act, or authorize electronic delivery of any
997	of the notices described in s. 103(b) of that act.
998	Section 31.  Section 709.2402, Florida Statutes, is created
999	to read:
1000	709.2402  Effect on existing powers of attorney.-Except as
1001	otherwise provided in this part:
1002	(1)  This part applies to a power of attorney created on or
1003	after October 1, 2011, and to acts of the agent occurring on or
1004	after that date.
1005	(2)  An act of the agent occurring before October 1, 2011,
1006	is not affected by this part.
1007	Section 32.  Subsection (5) of section 736.0602, Florida
1008	Statutes, is amended to read:
1009	736.0602  Revocation or amendment of revocable trust.-
1010	(5)  A settlor's powers with respect to revocation,
1011	amendment, or distribution of trust property may be exercised by
1012	an agent under a power of attorney only as authorized by s.
1013	709.2202 709.08.
1014	Section 33.  Sections 709.01, 709.015, 709.08, and 709.11
1015	Florida Statutes, are repealed.
1016	Section 34.  This act shall take effect October 1, 2011.

CODING: Words stricken are deletions; words underlined are additions.