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Statutory Duties Under a Power of Attorney in Florida.

| Dec 7, 2016 | Elder Law, Estate Planning |

In recent years, Florida has “beefed up” Chapter 709, which sets forth the statutes governing Powers of Attorney. Among the directives contained in that chapter are certain duties which govern an agent authorized to act under a Power of Attorney. These duties apply notwithstanding provisions in the Power of Attorney to the contrary. 

Section 709.2114, Florida Statutes, entitled “Agent’s duties” provides as follows:

(1) An agent is a fiduciary. Notwithstanding the provisions in the power of attorney, an agent who has accepted appointment:

(a) Must act only within the scope of authority granted in the power of attorney. In exercising that authority, the agent:

1. May not act contrary to the principal’s reasonable expectations actually known by the agent;

2. Must act in good faith;

3. May not act in a manner that is contrary to the principal’s best interest, except as provided in paragraph (2)(d) and s. 709.2202; and

4. Must attempt to preserve the principal’s estate plan, to the extent actually known by the agent, if preserving the plan is consistent with the principal’s best interest based on all relevant factors, including:

a. The value and nature of the principal’s property;

b. The principal’s foreseeable obligations and need for maintenance;

c. Minimization of taxes, including income, estate, inheritance, generation-skipping transfer, and gift taxes;

d. Eligibility for a benefit, a program, or assistance under a statute or rule; and

e. The principal’s personal history of making or joining in making gifts;

(b) May not delegate authority to a third person except as authorized under s. 518.112 or this part or by executing a power of attorney on a form prescribed by a government or governmental subdivision, agency, or instrumentality for a governmental purpose;

(c) Must keep a record of all receipts, disbursements, and transactions made on behalf of the principal; and

(d) Must create and maintain an accurate inventory each time the agent accesses the principal’s safe-deposit box, if the power of attorney authorizes the agent to access the box.

The foregoing is not an exhaustive nor exclusive list of the agent’s duties. However, it does lay out some of the basics–including the fact that the agent is a fiduciary and must act in good faith and in the best interests of the principal.

When a person undertakes to serve as agent for someone, the agent should familiarize themselves with the duties and limitations imposed uder Florida law. Often this may require consulting an estate attorney–especially if there is any doubt about what can be done and what crosses the line. 

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