Is My Current Power of Attorney Effective?
Do not assume that your old power of attorney will be effective.
The Florida power of attorney statute changed dramatically in 2011. Effective on October 1, 2011, the Legislature amended Chapter 709 of the Florida Statutes and completely rewrote the laws regarding powers of attorney. Among other things, the 2011 statute did away with “springing” powers of attorney (those that become effective only when the principal is incapacitated) and required that several important powers be initialed separately. See Fla. Stat. §§ 709.2108, 709.2202.
A power of attorney executed before October 1, 2011, even a springing power of attorney, is technically valid. However, it will be difficult to use and many institutions will reject it.
If you have not noticed, financial and government institutions are becoming stricter and stricter about their rules. Many require that the power of attorney spell out in detail the exact action for which you are trying to use it. A recent client was unable to use a 2003 power of attorney because it did not state in detail that it could be used in bankruptcy proceedings. Another recent client could not represent his mother in her husband’s estate because the power of attorney did not state in detail that he had that authority.
If you assume that your – or your parent’s – old power of attorney will work, you may be shocked when you find out you are wrong. By that time, it may be too late to prepare and execute a new power of attorney.
Look at your power of attorney now. Look at your parents’ powers of attorney now. If they were signed before October 1, 2011, I recommend that you prepare a new one. If they do not have separately initialed powers (the “super-powers”), I recommend that you prepare a new one.
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