Is Your Old Florida Power of Attorney Form Problematic?

Estate Planning and Probate
Jason Neufeld
July 15, 2020

You’re going to think I’m trying to sell you something.

I’m not…. I promise I have legitimate legal concerns.

Don’t be surprised if, during our elder law / medicaid planning consultation, I inform you that the durable power of attorney you had done by another lawyer, who doesn’t practice elder law (or heaven forbid a free Florida durable power of attorney template you downloaded off the internet) is no good for Florida Medicaid long-term care planning purposes.

I don’t have to redo powers of attorney all the time, but when I do, I can tell the potential client is thinking that I’m just trying to do unnecessary work to pad my fee.

I’m not…. I promise I have legitimate legal concerns.

By the end of this article, I hope that you’ll better understand why it is sometimes absolutely necessary to update your durable power of attorney.

There is No Such Thing as a “General” Durable Power of Attorney

I have many clients (or more often children of clients) who bring a power of attorney document and confidently state, “don’t worry, I have a general power of attorney that lets me do everything and anything as if I were mom.” A general, or all encompassing durable power of attorney, doesn’t exist anymore (not since the Florida Power of Attorney Act became law in October 2011).

What Changed in 2011 for Florida Durable Power of Attorneys?

In 2011, Florida adopted the Florida Power of Attorney Act (starting at Florida Statutes 709.2101) which brought Florida in-line with the 47 other states that have adopted a Uniform Power of Attorney Act - allowing properly executed durable power of attorney forms to cross state lines. So now, if a power of attorney was executed in another state, and it was valid in that state, 3rd parties in Florida are supposed to honor that document.

In addition, the Florida Power of Attorney Act set forth some additional requirements.

No General Power of Attorney in Florida

As mentioned above, specificity is now required. There is no such thing as a general durable power of attorney that says, “my agent can do everything I could do…” or words to that effect. While POAs signed before October 2011 are still valid, still makes practical sense to have one updated if the principal has capacity to sign (at least during a lucid interval).

Certain Florida Power of Attorney Provisions Must be Individually Initialed

This is the part that has me advising a new Florida Durable Power of Attorney. I see many non-elder law attorneys using an old pre-2011 power of attorney form where nothing is initialed.

I see the same thing on POA template forms downloaded off the internet.

Another power of attorney template I’m seeing is one that has the principal initial next to a box that says something to the effect of: “initialing here [on this one line] has the same effect as if I initialed on all the lines above.” There is no “all of the above” option allowed under Florida law and I wouldn’t mess around with it.  

Which Florida Power of Attorney Provisions have to be Individually Initialed?

The ability to create an inter-vivos trust; the ability to amend existing trusts; the ability to change rights of survivorship; the ability to change beneficiary designations or change rights of survivorship; and more. While there are other specific powers that require separate initials (which you can read all about in Fla. Stat. 709.2202), I only included the one’s above because they impact my clients who come to me for Florida medicaid long-term care planning (where I can protect someone’s assets and get Medicaid to pay for some or all of their long-term care needs).

Almost every Florida medicaid planning case I encounter requires the creation of some kind of trust (such as a Medicaid income trust or special needs trust). I cannot create a trust for someone who has lost capacity if their durable power of attorney does not have that specific provision initialed.

So, even if your power of attorney document specifically says, in bolded and capitalized black letters "I AUTHORIZE MY AGENT TO CREATE AN INTER VIVOS TRUST, INCLUDING SPECIFICALLY A QUALIFIED INCOME TRUST," if that provision (or one similar) does not have initials next to it, its INVALID if the durable power of attorney was signed after October 2011.

So when I advise creating a new power of attorney, its not because I want you to pay for something that isn't really needed.

I don't…. I promise I have legitimate legal concerns.

Other Common Florida Power of Attorney Deficiencies

When I’m reviewing a durable power of attorney that was drafted by another lawyer or a free template power of attorney, I’m looking for provisions that allow my client’s agent to create irrevocable trusts, qualified income trusts, personal services contracts, deal with real estate (even if it requires “self dealing” for the agent if that furthers my client’s preexisting estate plan), and that give my client’s agent the ability to apply for public benefits including Medicaid.

Other Florida Power of Attorney Requirements after 2011

If your Florida Durable Power of Attorney is Rejected?

  • Third parties who refuse to accept your otherwise-valid durable power of attorney must give a written explanation. For banks and other financial institutions, four days is presumed reasonable (for other 3rd parties, circumstances will dictate reasonableness).
  • Third parties may require an attorney-in-fact to sign an affidavit affirming that the principal is not dead and that the power of attorney is still in full force and effect.
  • But third parties may not require an additional form (many banks still ask that THEIR power of attorney form be filled out, this is inappropriate).
  • These third parties can be subject to paying damages and attorneys fees that are required to compel banks to accept a valid durable power of attorney.

In addition, springing powers of attorney are no longer effective. In other words, a power of attorney is in effect as soon as it is signed, witnessed and notarized. If you desire that “springing effect” we can discuss my office holding on to your POA and you can let your family know where it is located when it's needed (i.e. when you lose capacity). The theory being: if your agent doesn’t have the power of attorney document, he or she can’t use it.  

Original durable powers of attorneys are no longer mandatory. Third parties must accept copies.  

Agents must keep records of transactions made on behalf of the principal. If the power of attorney accesses a safe-deposit box, the agent must provide an inventory each time the box is accessed.

The filing of a petition for dissolution of marriage terminates the authority of an agent who is married to the principal (unless the power of attorney states otherwise).

Final Florida Power of Attorney Thoughts

It's not always strictly legally necessary to update your durable power of attorney. But if the document is old and doesn’t meet post-2011 statutory requirements; I still say that redoing the POA is practically a good idea. Why is it practical if not strictly required?

Here is my reasoning: your power of attorney document is only good if its honored and respected by third parties as quickly as possible.

Third parties, including the bank, insurance companies, and government agencies (including DCF if dealing with Florida Medicaid) don’t always understand the law and may cause unnecessary delays or push-back if they don’t know that they are supposed to honor pre-2011 POAs that don’t meet post-2011 POA requirements.

It would be penny-wise and pound-foolish to try to save a few hundred dollars now vs. hiring me (or another Florida elder care lawyer) later to argue with someone who is improperly refusing to honor your old durable power of attorney document.

I’m not looking to do unnecessary work. If your POA form has everything I know is now required or what other institutions are looking for when considering whether to accept and honor the POA, I will not suggest you redo your durable power of attorney.  

But if I review an old POA and see any legal deficiency or believe there is a possibility of your current power of attorney coming under unnecessary scrutiny, I’ll suggest formally executed a new Florida durable power of attorney document. When I do, I’ll explain in detail the reasons why.

Don’t think I’m trying to up-sell you!

I’m not…. I promise I have legitimate legal concerns.

Additional Florida Power of Attorney Resources

Jason Neufeld
Jason is committed to assisting and protecting the most vulnerable members of society, through his substantial legal work with the elderly.