The State of Florida has enacted a new statute governing durable power of attorneys, found in Chapter 709 of the Florida Statutes. The new statute went into effect on October 1, 2011. Power of attorneys that were executed prior to that date are still valid, as long as they complied with Florida law at the time of execution. However, because of some significant changes with the new statute, it is wise for all individuals with a Florida power of attorney to review their existing document, and more than likely, execute a new power of attorney that properly complies with the updated law.

The new Florida statute contains several important differences from its prior version. First, under the new statute, so-called “blanket powers” are no longer effective. Most power of attorneys contain blanket powers, which authorize the agent to act broadly, and to take any reasonable actions that it is believed the principal would him-or-herself take. Such open-ended grants of power are now invalid in Florida, and instead, an agent is only permitted to exercise authority that is expressly granted in the document, and any additional authority reasonably necessary to give effect to the express grant of authority. This is a key change from the old statute, and general provisions are no longer valid or binding because of their lack of specificity. In order to have legal effect, all powers that the principal wishes the agent to possess must be expressly stated in the power of attorney (regardless of when the power of attorney was executed).

Another major change that was put into effect on October 1, 2011 is that springing power of attorneys are no longer allowed. A springing power of attorney is a power of attorney that is only activated at the time that the principal becomes incapacitated. In other words, an agent cannot act pursuant to the power of attorney unless the principal is disabled. The alternative to a springing power of attorney is commonly referred to as an immediate power of attorney, which is a power of attorney that fully authorizes the agent to act on behalf of the principal at the moment it is signed. In Florida, as a result of the new statute, only immediate power of attorneys are permitted. Existing springing power of attorneys are now void.

Furthermore, in regard to powers related to both banking and investing, the power of attorney should contain explicit language regarding the agent’s authority to conduct these types of transactions. The language used should directly reference the statute. By citing specific provisions of the statute, agents will avoid potential issues with banks or other financial institutions at the time the power of attorney is presented about the extent of the agent’s authority.