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When does a Durable Power of Attorney go into effect in Florida?

by | Sep 24, 2021 | Durable Power of Attorney, Elder Law, Estate Planning |

A Durable Power of Attorney (“DPOA”) is a written legal instrument signed by one person, known as a principal, appointing another person, known as an agent, to act on the principal’s behalf. Most such DPOAs enumerate specific powers which the agent may exercise. For example, the DPOA may give the agent authority to conduct banking transactions or to sell or convey real property. Many times, having this type of instrument can be extremely beneficial since it allows one person to help another. With those who are ill, incapacitated or elderly, this type of DPOA can be essential. It can allow the agent to assist or act for the principal in accomplishing basic necessary activities which the principal cannot do.

When a person executes a DPOA, he or she often asks the question as to when the DPOA goes into effect. When does the agent have power to act? In Florida, the answer is “immediately.” Section 709.2108(1), Fla. Stat. provides that “Except as provided in this section, a power of attorney is exercisable when executed” (emphasis added). In essence, the DPOA can be used by the agent immediately after it is signed notwithstanding whether the principal is incapacitated. In other words, once executed, there is no triggering event that is required in order for the agent to have the power to act under the DPOA.

However, as referenced in Section 709.2108(1), Fla. Stat., there is one major exception. Section 709.2108(2), Fla. Stat. provides:

If a power of attorney executed before October 1, 2011, is conditioned on the principal’s lack of capacity and the power of attorney has not become exercisable before that date, the power of attorney is exercisable upon the delivery of the affidavit of a physician who has primary responsibility for the treatment and care of the principal and who is licensed to practice medicine or osteopathic medicine pursuant to chapter 458 or chapter 459 as of the date of the affidavit. The affidavit executed by the physician must state that the physician is licensed to practice medicine or osteopathic medicine pursuant to chapter 458 or chapter 459, that the physician is the primary physician who has responsibility for the treatment and care of the principal, and that the physician believes that the principal lacks the capacity to manage property.

This exception, which applies in very limited circumstances, does allow pre-October 1, 2011 DPOAs to be conditioned on the principal becoming incapacitated. Other than this exception, what used to be called a “springing power of attorney” is no longer allowed in Florida. All post-October 1, 2011 DPOAs are immediate.

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