By Richard N. Sherrill, Esq.
Richard is a Clark Partington shareholder, and member of the Executive Council of the Florida Bar Real Property Probate & Trust Law Section.
PENSACOLA, FL (April 6, 2020) –
FROM THE FLORIDA BAR RPPTL – The COVID-19 pandemic has prompted many questions about how Floridians may delegate their personal and medical decisions. For example, how can a competent adult make advance decisions regarding life-prolonging medical procedures? How can a person designate another individual to make medical treatment decisions on their behalf if they become unable to do so? And how can a person delegate authority to another person for non-medical decisions? In this 10 minute video, Board Certified Wills Trust & Estates Attorney and RPPTL Section Member, Richard Sherrill, addresses these important issues in a format intended for laypersons and practicing attorneys. He has also provided a helpful written summary with links to additional resources.
I. POWERS OF ATTORNEY IN FLORIDA
- Relevant Florida Statutes: Chapter 709, Florida Statutes
- Resource: For additional information, see The Florida Bar’s Consumer Pamphlet on Florida Powers of Attorney: https://www.floridabar.org/public/consumer/pamphlet13/
- Florida Power of Attorney Act effective October 1, 2011. From that date forward the formalities, execution, use and acceptance or rejection for any document are governed by the POA Act.
- Valid power of attorney documents created prior to October 1, 2011, are not affected by the POA Act, nor are military powers of attorney (the form and use of which are governed by federal law).
- Out-of-state powers of attorney which do not conform with the POA Act may be relied upon and used if the form of the document complies with applicable state law of the state where executed at such time of execution.
- Formalities of POA. Must be executed with the formalities of a deed; signed by the principal in the presence of two witnesses and a notary (the notary can serve as one of the witnesses)
- Copy is valid as the original unless the instrument provides otherwise. But real estate transactions almost always must present original or have recorded.
- No particular form. A third party may not require use of their form so long as POA otherwise valid.
- Durability. Authority can last beyond the principal’s incapacity if includes statutory language. “This durable power of attorney is not terminated by subsequent incapacity of the principal except as provided in chapter 709, Florida Statutes.”
- No “springing” power of attorney. All post-October 2011 POAs exercisable immediately upon execution.
- Authority of agent. A POA may not broadly and sweepingly authorize an agent to perform all acts which the principal could perform. Authority to act must be specifically granted.
- Examples. Handling stock, real property, health care matters and banking matters. These items may not be generally granted in the instrument under the POA Act.
- Prohibited activities. To perform personal services of the principal, to vote on behalf of the principal, to swear an affidavit, to exercise fiduciary duties held by the principal and to execute or revoke a will or codicil of the principal.
- Estate planning functions. Require separate signing or initialing of the principal as to each such action are follows: settle/amend/revoke a trust not otherwise inconsistent with the testator’s established estate plan, make a permitted gift, re-arrange survivorship or beneficiary designation, deal with the principal’s rights under an annuity and disclaim property.
- Protection of third parties for accepting POA. Properly executed effective POA of a living principal used in good faith for the benefit of the principal must be honored by third parties. A third party must accept the authority of an agent who presents the POA (or a copy unless the instrument provides otherwise) within a reasonable time (generally 4 business days), or else refuse in a reasoned writing to accept the instrument. No substitute preferred form of the third party can be required in place of an otherwise valid POA.
- A third party who is reluctant to rely on the POA may ask for a written opinion of counsel, at the principal’s expense, which assures the third party that the instrument is valid and effective. A third party may also require an agent to execute an affidavit setting out the effectiveness of the POA — essentially that the principal is alive, the authority to act has not been terminated and that the proposed act is authorized under the instrument.
- Unreasonable/improper refusal of a power of attorney may subject third party to court order requiring acceptance and fees incurred in requiring acceptance.
- Third party who reasonably relies on and accepts apparently valid power of attorney is exonerated from liability for doing so.
- Termination of authority. When either the principal or agent dies; if non-durable then upon the incapacity of the principal; revocation; divorce.
II. LIVING WILLS, DESIGNATIONS OF HEALTH CARE SURROGATES & DNRs
A. Generally
- Relevant Florida Statutes: Chapter 765, Florida Statutes
- Resources: For additional information, see information provided by the Florida Agency for Health Care Administration and The Florida Bar:
https://www.floridahealthfinder.gov/reports-guides/advance-directives.aspx
https://www.floridabar.org/public/consumer/consumer003/
B. Living Wills
- Generally comprised of end-of-life (“pull-the-plug”) issues, specific treatment choices, organ donation and designation of health care surrogate.
- Allows person executing this document to make end-of-life wishes known in advance.
- Medical care providers held harmless if rely upon the instructions in a valid living will, or follow direction of a health care surrogate.
- Generally statutory form (chapter 765, Florida Statutes).
- Signed and requires two witnesses but no notary.
C. Designation of Health Care Surrogate
- Essentially a medical power of attorney.
- Allows waiver of HIPAA regulations that could otherwise prohibit access to medical records, information or discussions.
- Actions of health care surrogate can generally be relied upon with liability to medical care provider.
- Signed and requires two witnesses but no notary.
D. DO NOT RESUSCITATE
- Resource: See Florida Administrative Code Section 64J-2.001:
https://www.flrules.org/gateway/RuleNo.asp?id=64J-2.001
- Specific statutory form.
- MUST BE ON YELLOW PAPER ONLY.
- Must be signed by the principal and also signed by that person’s physician, but no witness or notary required.
- Will be honored, and the person signing will not be resuscitated – so clearly very powerful.
III. MINOR POWER OF ATTORNEY
- A variety of power of attorney, natural parent can authorize someone else to take action on behalf of a minor, that the parent could otherwise undertake.
- Includes medical.
- Signed, witnessed and notarized.
Click here to download a printable PDF.
Visit The Florida Bar RPPTL COVID-19 Information Page to view additional videos and content relating to Real Property, Probate and Trust Law.
Visit our Coronavirus Resource Center to view a comprehensive list of Clark Partington’s COVID-19 related articles/links.
###
Richard N. Sherrill is board certified by The Florida Bar in Wills, Trusts and Estates. He is AV rated by Martindale Hubbell. Richard specializes in trust and estate matters, and handles prenuptial agreements, probate, estate planning, and virtually all aspects of wills, trusts and estates. He regularly represents fiduciaries in ancillary administration of Florida estates for out-of-state decedents. Richard’s practice also includes real estate closings and finance.
Richard is a Clark Partington shareholder, and member of the Executive Council of the Florida Bar Real Property Probate & Trust Law Section. Richard can be reached at rsherill@clarkpartington.com or (850) 434-3276.
About Clark Partington:
Clark Partington is the largest business focused firm in the Florida panhandle with offices in Pensacola, Destin, Grayton Beach & Tallahassee. The firm also maintains a presence in South Alabama with an Orange Beach office. Since 1976 Clark Partington has grown to over forty lawyers and has served the people and businesses of Florida through an innovative and collaborative approach to practicing law. Our lawyers are consistently recognized for their service to the profession and excellence in the courtroom. More information about the firm’s practice, its attorneys, and recognitions may be found at www.clarkpartington.com.
