A Durable Power of Attorney (“DPOA”) names you as agent or attorney-in-fact to act for the person who executed the DPOA (the “Principal”). You go into a bank intending to transact some business on behalf of the Principal and when you present the DPOA, you are told that the bank requires an affidavit before you can take any action. What is the basis for this request and how do you comply with it?
The legal basis for this request in Florida is under Section 709.2119, Fla. Stat. which provides that when asked to honor a DPOA, a third person may require:
(a) An agent to execute an affidavit stating where the principal is domiciled; that the principal is not deceased; that there has been no revocation, or partial or complete termination by adjudication of incapacity or by the occurrence of an event referenced in the power of attorney; that there has been no suspension by initiation of proceedings to determine incapacity, or to appoint a guardian, of the principal; that the agent’s authority has not been terminated by the filing of an action for dissolution or annulment of marriage or legal separation of the agent and principal; and, if the affiant is a successor agent, the reasons for the unavailability of the predecessor agents, if any, at the time the authority is exercised.
The affidavit provides the third party with certain assurances that the third party may rely on the authority of the DPOA. The affidavit assures the third party that the DPOA is still in effect and that nothing has happened that would indicate that the DPOA is not longer enforceable.
Such an affidavit should be in substantially the following form:
Before me, the undersigned authority, personally appeared by way of personal presence, (agent) (“Affiant”), who swore or affirmed that:
1. Affiant is the agent named in the Power of Attorney executed by (principal)(“Principal”) on (insert date) .
2. This Power of Attorney is currently exercisable by Affiant. The Principal is domiciled in (insert name of state, territory, or foreign country) .
3. To the best of Affiant’s knowledge after diligent search and inquiry:
a. The Principal is not deceased;
b. Affiant’s authority has not been suspended by initiation of proceedings to determine incapacity or to appoint a guardian or a guardian advocate;
c. Affiant’s authority has not been terminated by the filing of an action for dissolution or annulment of Affiant’s marriage to the principal, or their legal separation; and
d. There has been no revocation, or partial or complete termination, of the power of attorney or of Affiant’s authority.
4. Affiant is acting within the scope of authority granted in the power of attorney.
5. Affiant is the successor to (insert name of predecessor agent) , who has resigned, died, become incapacitated, is no longer qualified to serve, has declined to serve as agent, or is otherwise unable to act, if applicable.
6. Affiant agrees not to exercise any powers granted by the Power of Attorney if Affiant attains knowledge that the power of attorney has been revoked, has been partially or completely terminated or suspended, or is no longer valid because of the death or adjudication of incapacity of the Principal.
When a third party is presented with what appears to be a valid DPOA and when the agent executes an affidavit as described above, the third party may, in good faith, rely upon the DPOA and the instructions given by the agent.
