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Can a nonresident of Florida serve as agent under a Florida Durable Power of Attorney?

by | Nov 30, 2021 | Durable Power of Attorney, Elder Law, Estate Planning |

When working with clients, we are often asked who can serve as agent under their Durable Power of Attorney. Often the reason for the question is that they want to know if a nonresident of Florida can be designated. The short answer is that a nonresident person can be appointed so long as he or she meets certain prerequisites. To put this in context, some explanation will help.

Section 709.2105, Fla. Stat. sets forth the qualifications required in order to be appointed agent under a DPOA in Florida. The statute states specifically that “The agent must be a natural person who is 18 years of age or older or a financial institution that has trust powers, has a place of business in this state, and is authorized to conduct trust business in this state.”

If the designated agent under a DPOA is a natural person who is 18 years of age or older, then his or her state of residence does not matter. In other words, a nonresident individual may be appointed agent under a Florida DPOA. So, if Charles lives in Florida and wants to appoint his adult cousin, Robert, a Georgia resident, as agent, then that can be done. Even if Robert is just a friend (i.e. he’s not related to Charles by blood or marriage), he may still be appointed as agent under Charles’ DPOA so long as Robert is over age 18.

Unlike the law applicable to a natural person serving as agent, if the DPOA names a financial institution to act as agent, then the financial institution must have a place of business in Florida and must be authorized to conduct business in Florida. A financial institution might include a bank or credit union or an independent trust company. These institutions are occasionally named as agent under a DPOA. In Florida, in order to be effective, the institution must meet the requirements of having a place of business in Florida and being authorized to conduct business in Florida.

When naming an agent under a DPOA, one of the things to take under consideration is whether a nonresident will be able to carry out their duties. Can someone living in Georgia perform their duties in Florida. In most instances, with modern communication and travel, the answer is in the affirmative.

In our practice, geographical availability of the agent is considered but it takes a back-seat to two more important considerations. These are: (1) Do you trust the person you’re naming? and (2) Is the person capable of performing their duties? Our advice when it comes to appointing an agent is that the geographical consideration should only apply if the trust and capability issues are satisfied first. Stated another way, we’d rather you name a nonresident as agent if they are the best choice when it comes to trust and capability than to name a Florida resident when they are not the most trustworthy and capable.

 

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