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.

Change in Surviving Spouse's Intestate Share effective October 1, 2011

Effective October 1, 2011, a surviving spouse's intestate share of an estate will go up from 50% to 100% of the estate if the decedent's descendants are also descendants of the surviving spouse.

Here's how the new intestacy distribution for surviving spouses is explained in Florida House of Representative's Staff Analysis of CS/HB 325:

Intestate Estate

When a) an individual dies (the decedent) without a will, b) a person's will is declared invalid, or c) assets are not distributed by a valid will, then the individual is considered "intestate." Since there is no will to direct the distribution of assets, Florida law provides how the distribution of assets will be made after paying debts and the expense of conducting the probate proceedings.

Florida law on intestate succession provides the following: 

·         If there are no surviving descendants of the decedent, then the spouse receives the entire intestate estate.

·         If there are surviving descendants of the decedent, who are all also lineal descendants of the surviving spouse, then the surviving spouse receives the first $60,000 in property of the estate, plus one-half of the remaining balance of the estate subject to distribution. [THIS IS WHERE THE LAW IS CHANGING. EFFECTIVE OCTOBER 1, 2011, THIS SURVIVING SPOUSE NOW GETS 100% OF THE ESTATE.]

·         If there are surviving descendants of the decedent, one or more of whom are not lineal descendants of the surviving spouse, then the surviving spouse receives one half of the estate and the lineal descendants receive the other half.

·         There are additional provisions for distribution in situations beyond these, which distribute assets to other family members, but those are not relevant to the changes made in this bill. See § 732.103 .

The bill also creates s. 732.102(4), F.S., to provide that if the surviving spouse has descendants that are also descendants of the decedent, but the surviving spouse also has a descendant not related to the decedent, then the surviving spouse's intestate share is half of the estate. The lineal descendants of the decedent would inherit the remaining half of the estate under s. 732.103, F.S.

Clarification of Creditor Rights Concerning LLC Members

The Florida Legislature recently passed CS/HB 253 (the “Bill”) to address the uncertainty that the Florida Supreme Court created with its’ decision in Olmstead v. Federal Trade Commission, 44 So. 3d 76 (Fla. 2010). In Olmstead, the Court held that a charging order is not the exclusive remedy of a judgment creditor when attempting to satisfy the judgment against a judgment debtor’s membership interest in a Florida single-member limited liability company (LLC). Consequently, the Court ordered the judgment debtor to surrender all of his rights, title, and interest in the single-member LLC to the creditor in satisfaction of the judgment.

The Bill specifically addresses the Olmstead decision’s ambiguities and amends Florida Statutes Section 608.433. The amendment now makes clear distinctions between single and multiple-member LLCs. It provides that a charging order is the sole and exclusive remedy by which a judgment creditor of an LLC member (in a single or multiple-member LLC) may satisfy a judgment using the member’s membership interest. However, in the case of a single-member LLC, a court may order a foreclosure sale of the membership interest only where a creditor shows that distributions under the charging order will not satisfy the judgment within a reasonable time. The membership interest foreclosure remedy is not available in the case of a multiple-member LLC.