In a Florida Durable Power of Attorney, can co-agents act independently?

In a recent blog, I discussed the difference between naming consecutive or successor agents versus naming co-agents in a Durable Power of Attorney ("DPOA"). A common question we hear when naming co-agents is whether they must act together. Stated another way, if co-agents are named, can one act alone or independently without the other being present?

Section 709.2111(1), Fla. Stat. provides that:

A principal may designate two or more persons to act as co-agents. Unless the power of attorney otherwise provides, each co-agent may exercise its authority independently.

Being able to act independently is important. If one agent is travelling or otherwise unavailable, the person who executed the DPOA does not want to be without assistance. This statute gives a needed protection in the event of an unavailable co-agent.

For example, if Pete executes a DPOA naming his sisters, Rebecca and Suzanne, to act as co-agents on his behalf, then either Rebecca or Suzanne can act individually and without the other's presence or permission. So if Pete gets in an accident and is incapacitated at a time when Suzanne is overseas, Rebecca can still help Pete. However, if Pete's DPOA specifically provides that both must act together, then the terms of the instrument prevail over the statute.

When considering a DPOA, you should discuss your options with an experienced estate planning attorney.

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