Under a Florida Durable Power of Attorney (“DPOA”), a principal person may give another person (often called an “agent”) the authority to act for the principal on various personal and financial matters. These may include authority such as selling real estate, paying bills, filing insurance, signing documents, etc. By executing the DPOA, the principal gives his or her agent the authority to act on these types of general matters. Having such a DPOA is a huge benefit in cases involving those who are incapacitated or are elderly.
However, in Florida some powers under a DPOA require special acknowledgement in order to be authorized. These have been described as the “super powers” of a DPOA. These powers require more than that the principal simply sign the DPOA at the end in front of two witnesses and a notary.
Section 709.2202, Fla. Stat. requires separate signed enumeration for the following:
(a) Create an inter vivos trust;
(b) With respect to a trust created by or on behalf of the principal, amend, modify, revoke, or terminate the trust, but only if the trust instrument explicitly provides for amendment, modification, revocation, or termination by the settlor’s agent;
(c) Make a gift;
(d) Create or change rights of survivorship;
(e) Create or change a beneficiary designation;
(f) Waive the principal’s right to be a beneficiary of a joint and survivor annuity, including a survivor benefit under a retirement plan; or
(g) Disclaim property and powers of appointment.
In order to exercise the super powers listed above, the principal must sign or initial next to each specific enumeration of authority. The statute also provides that the exercise of the authority must be consistent with the agent’s duties under s. 709.2114 (e.g. an agent is a fiduciary and must act in the best interest of the principal), and the exercise must not otherwise be prohibited by another agreement or instrument.
An example of what this separate signed enumeration might look like is as follows:
I hereby give my agent the authority to exercise each of the following powers next to which I have signed my name (if blank, then such power is not given):
Signature: George Washington To create an inter vivos trust;
Signature: George Washington To make a gift…..
These super powers give the agent the ability to make some important discretionary decisions. One reason to require separate signed enumeration is that these powers involve decisions or acts that could directly impact the principal’s rights. Requiring separate signatures or initials is a way to ensure that the principal is aware that he or she is giving these powers.
In deciding whether to grant these super powers, a principal should seek counsel from an experienced estate planning lawyer. Understanding the ramifications could mean granting or not granting the powers, depending of each client’s particular circumstance.
