Recent Developments

■ Florida amended its power of attorney law. Since most
folks living in high tax decoupled states (e.g. NY, NJ…) claim to live in Florida J this change in law will affect more than just
Floridians.

■ Powers must be signed by the principal and by
two subscribing witnesses and be acknowledged by the principal before a notary
public. 709.2105. Powers signed before 10/1/11 will be grandfathered.  A power executed in another state which does
not comply with the new Florida
execution requirements is valid if, when the power of attorney was executed, it
complied with the law of the state of execution. A third person who is
requested to accept such a power may in good faith request, and rely upon,
without further investigation, an opinion of counsel as to any matter of law concerning
the power of attorney. 709.2106. Might this mean that any bank or person in
Florida asked to accept a power prepared in, for example NY, will only do so if
they are provided a legal opinion that the power was valid in NY? Yep. Might
that make the cost and time delays of using a NY power in Florida significant. Yep. Does that mean
that if you’re a New Yorker wintering in Florida you might want to have a
Florida compliant power just in case of an emergency? Yep.

■ Powers signed on or after Oct. 1, 2011 may not
be contingent on some future event (e.g., incapacity of the maker). Powers
signed prior to 10/1/11 are grandfathered but catch this:  a springing power (conditioned on the
principal’s lack of capacity) is only exercisable upon delivery of an affidavit
of a physician that must state: (1) the physician is licensed to practice under
chapter 458/459 (what’s that mean to a NY doc?); (2) the physician is the “primary
physician who has responsibility for the treatment and care of the principal”;
and (3) the principal lacks “the capacity to manage property.” 709.2108. What
doc will be comfortable signing that? How much time will this take? When a
Yankee fan hangs out in Marlin territory they might want to get a Florida power to avoid
this.

■ See Chapter 709, Florida Statutes, ss. 709.2101–709.2402.  Thanks to Benjamin P. Shenkman, Esq. Wellington, FL.