The New Florida Power of Attorney Act

The Power of Attorney Committee was charged with the task of evaluating the recently announced Uniform Power of Attorney Act for possible enactment in Florida. The committee was created by the Real Probate and Trust Law Section of the Bar (RPTL). The Committee is comprised of attorneys from various legal backgrounds including estate planning, estate and trust litigation, family law, elder law, as well as others who work for financial institutions, those who represent the Florida Bankers Association, and others whose practice relates to real estate title insurance. 

As a result, on May 14^th, 2011 the Florida Legislature voted to pass Senate Bill 670, which significantly revises Florida Statutes Chapter 709 in an attempt to achieve greater consistency among the states by conforming Florida’s power of attorney law to the Uniform Power of Attorney Act, with certain modifications. The Legislature has recognized that it is desirable to make a system available to the citizens of Florida that provides persons who are incapacitated with the least restrictive alternative to guarantee their rights are protected, their financial resources are properly managed, as well as ensuring their physical health and safety. Comprehensive legislation will ensure that durable powers of attorney will continue to be an effective alternative to guardianship. It will provide protection to the principal (the person who creates the power of attorney) and it will also give clear guidance to the agent (the person who is granted authority to act for a principal) of the power of attorney as to their respective rights and responsibilities as well as remedies for abuses.  The new, detailed Florida Power of Attorney Act will take effect on October 1, 2011.

Surviving Spouse’s "New" Intestate Share? Really?

While the change in law certainly makes sense to me (as this is what most of my clients request anyway, “Everything to my spouse but if he/she has predeceased, then to my children”), my clients would be surprised that this is new law. Most people believe that if they die intestate, everything goes to their spouse, Well, they’ve been wrong all these years, but that’ll change come October 1^st (assuming that all descendants are children of the surviving spouse).

So why do any planning if your intention is for your spouse to receive everything anyway? A few possibilities to ponder:

a)      Surviving spouse receives everything upon your passing. You assumed he/she would then leave everything to your children. Surviving spouse remarries and what you thought would be left for the children, is enjoyed with the new spouse. (Not the kind of thing you want to imagine, but unfortunately, a very realistic possibility.)

b)      Surviving spouse receives everything upon your passing. Surviving spouse has creditor problems and creditors are successful in getting a judgment against surviving spouse. Bank of Poor Planning will be the ones enjoying assets from your estate, rather than your spouse and children.

c)      Surviving spouse receives everything upon your passing. Surviving spouse is involved in a car accident (more probable than not in South Florida), a lawsuit is filed against him/her, and the plaintiff prevails. Need I say more?

Be proactive, not reactive. Don’t wait until it’s too late to secure the future of your family.