With the recent changes to the Florida Statutes, it is even more dangerous to use Powers of Attorney documents created by online systems or found in forms books. Not only is there a big risk that they will not comply with the new Florida laws and be worthless, but if they are valid, you run a big risk of handing someone a blank check. YES that is what many are calling the powers contained in the new Florida Durable Powers of Attorney act.
While those using a POA are supposed to act in a fiduciary capacity, when they do not, someone has to complain about it or nothing will be done. While under Florida's Elder Law abuse statutes, anyone may complain about the actions of another who is over the age of 55, those under 55 who grant powers of attorney have little recourse when their power of attorney is abused without their knowledge.
More Jacksonville Estate Planning Lawyers are creating systems to accomplish the springing powers that have recently been stripped from the statutes.
Many are asking who pushed for these new changes. The answer is simple, the banks. It is easier for banks to understand what they have to do with the new documents, it limits lawsuits against banks, but all of this comes with great potential harm to the consumer.
individual already do not understand how to properly structure a Power of Attorney, now many will create invalid powers and potentially incur thousands of dollars of additional legal expenses when they find that they are not valid or do not provide the rights necessary to make gifts, create revocable and irrevocable trusts, or do planning that will enable an individual to preserve their assets instead of spending down their assets to qualify for government benefits. (Currently an individual must spend their assets down to less than $2000 before receiving government benefits.)
Even if they have no assets and can qualify for nursing home coverage, they may have too much income to qualify. Most free or low-cost powers of attorney do not provide the correct language necessary to create income trusts.
Some of the Major changes
- Agents May not Take Any Actions not Clearly Granted to Them
- New Springing Powers of Attorney Are No Longer Recognized
- Certain Delegations of Authority Require the Principal's Initials or Signature
- Creating an inter vivos trust
- Amending, modifying, revoking, or terminating an existing trust (additionally, the trust instrument must explicitly authorize the settlor's agent to exercise such authority)
- Making gifts, subject to statutory limits
- Creating or changing rights of survivorship
- Creating or changing a beneficiary designation
- Waiving the principal's right to be a beneficiary of a joint and survivor annuity, including a survivor benefit under a retirement plan
- Disclaiming property and powers of appointment
- Some Delegations of Authority are Ineffective (Even With the Principal's Consent)
- Perform a contract under which the principal was obligated to provide "personal services"
- Make an affidavit as to the personal knowledge of the plaintiff (in other words, take an oath affirming facts which the principal did or did not know)
- Vote in a public election on behalf of the principal
- Execute or revoke a will for the principal
- Exercise authority granted to the principal in her capacity as trustee or as a court-appointed fiduciary
- General Language No Longer Sufficient to Revoke Prior Powers of Attorney
- Co-Agents Can Act Independently on the Principal's Behalf
- Co-Agents to report wrongdoing or become liable for others actions
If you are looking to create a Florida Power of Attorney you should discuss your goals, objective,and limitations under the new Florida law to make sure you create the documents necessary to be able to provide for yourself and family in the case you become incapacitated at sometime in the future.