2011 Legislature                    CS for SB 670, 1st Engrossed
    2         An act relating to powers of attorney; providing
    3         directives to the Division of Statutory Revision;
    4         creating s. 709.2101, F.S.; providing a short title;
    5         creating s. 709.2102, F.S.; providing definitions;
    6         creating s. 709.2103, F.S.; providing applicability;
    7         providing exceptions; creating s. 709.2104, F.S.;
    8         providing for a durable power of attorney; creating s.
    9         709.2105, F.S.; specifying the qualifications for an
   10         agent; providing requirements for the execution of a
   11         power of attorney; creating s. 709.2106, F.S.;
   12         providing for the validity of powers of attorney
   13         created by a certain date or in another jurisdiction;
   14         providing for the validity of a military power of
   15         attorney; providing for the validity of a photocopy or
   16         electronic copy of a power of attorney; creating s.
   17         709.2107, F.S.; providing for the meaning and
   18         effectiveness of a power of attorney; creating s.
   19         709.2108, F.S.; specifying when a power of attorney is
   20         effective; providing limitations with respect to a
   21         future power of attorney; creating s. 709.2109, F.S.;
   22         providing for the termination or suspension of a power
   23         of attorney or an agent’s authority; creating s.
   24         709.2110, F.S.; providing for the revocation of a
   25         power of attorney; creating s. 709.2111, F.S.;
   26         providing for the designation of co-agents and
   27         successor agents; specifying the responsibility of a
   28         successor agent for a predecessor agent; authorizing a
   29         co-agent to delegate certain banking transaction to a
   30         co-agent; creating s. 709.2112, F.S.; providing for
   31         the reimbursement and compensation of agents; creating
   32         s. 709.2113, F.S.; providing for the agent’s
   33         acceptance of appointment; creating s. 709.2114, F.S.;
   34         providing for an agent’s duties; limiting an agent’s
   35         liability, absent a breach of duty; requiring that an
   36         agent make certain disclosures upon order of a court,
   37         upon the death of the principal, or under certain
   38         other circumstances; creating s. 709.2115, F.S.;
   39         providing for the exoneration of an agent; providing
   40         exceptions; creating s. 709.2116, F.S.; providing for
   41         judicial relief; authorizing the award of attorney’s
   42         fees and costs; providing for a judicial challenge to
   43         an agent’s exercise of power based on a conflict of
   44         interest; specifying the burden of proof required to
   45         overcome that challenge; creating s. 709.2117, F.S.;
   46         providing for an agent’s liability; creating s.
   47         709.2118, F.S.; providing for an agent’s resignation;
   48         creating s. 709.2119, F.S.; providing for the
   49         acceptance of and reliance upon a power of attorney;
   50         authorizing a third party to require an affidavit;
   51         providing for the validity of acts taken on behalf of
   52         a principal who is reported as missing by a branch of
   53         the United States Armed Forces; providing a
   54         restriction on the conveyance of homestead property
   55         held by such a principal; creating s. 709.2120, F.S.;
   56         providing for liability if a third person refuses to
   57         accept a power of attorney under certain
   58         circumstances; providing for an award of damages and
   59         attorney’s fees and costs; creating s. 709.2121, F.S.;
   60         requiring that notice of certain events be provided to
   61         an agent or other third person; specifying the form of
   62         the notice and when it is effective; creating s.
   63         709.2201, F.S.; providing for the authority of an
   64         agent; providing limitations; providing that an
   65         agent’s authority extends to property later acquired
   66         by the principal; creating s. 709.2202, F.S.;
   67         specifying that certain authority requires separate
   68         signed enumeration; restricting the amount of certain
   69         gifts made by an agent; specifying certain acts that
   70         do not require specific authority if the agent is
   71         authorized to conduct banking transactions; limiting
   72         the application of such provision; creating s.
   73         709.2208, F.S.; providing for authority to conduct
   74         banking and security transactions; creating s.
   75         709.2301, F.S.; specifying the role of common law;
   76         creating s. 709.2302, F.S.; providing for the
   77         preemption of laws relating to financial institutions;
   78         creating s. 709.2303, F.S.; providing for the
   79         recognition of other remedies; creating s. 709.2401,
   80         F.S.; specifying the relationship of the act to
   81         federal law regulating electronic signatures; creating
   82         s. 709.2402, F.S.; providing for powers of attorney
   83         executed before the effective date of the act;
   84         amending s. 736.0602, F.S.; conforming a cross
   85         reference; repealing s. 709.01, F.S., relating to the
   86         authority of an agent when the principal is dead;
   87         repealing s. 709.015, F.S., relating to the authority
   88         of an agent when the principal is missing; repealing
   89         s. 709.08, F.S., relating to durable powers of
   90         attorney; repealing s. 709.11, F.S., relating to a
   91         deployment-contingent power of attorney; providing an
   92         effective date.
   94  Be It Enacted by the Legislature of the State of Florida:
   96         Section 1. The Division of Statutory Revision is requested
   97  to create part I of chapter 709, Florida Statutes, consisting of
   98  ss. 709.02-709.07, entitled “POWERS OF APPOINTMENT.”
   99         Section 2. The Division of Statutory Revision is requested
  100  to create part II of chapter 709, Florida Statutes, consisting
  101  of ss. 709.2101-709.2402, entitled “POWERS OF ATTORNEY.”
  102         Section 3. Section 709.2101, Florida Statutes, is created
  103  to read:
  104         709.2101Short title.—This part may be cited as the
  105  “Florida Power of Attorney Act.”
  106         Section 4. Section 709.2102, Florida Statutes, is created
  107  to read:
  108         709.2102 Definitions.—As used in this part, the term:
  109         (1) “Agent” means a person granted authority to act for a
  110  principal under a power of attorney, whether denominated an
  111  agent, attorney in fact, or otherwise. The term includes an
  112  original agent, co-agent, and successor agent.
  113         (2) “Durablemeans, with respect to a power of attorney,
  114  not terminated by the principal’s incapacity.
  115         (3) “Electronic” means technology having electrical,
  116  digital, magnetic, wireless, optical, electromagnetic, or
  117  similar capabilities.
  118         (4) ”Financial institution” has the same meaning as in s.
  119  655.005.
  120         (5) “Incapacity” means the inability of an individual to
  121  take those actions necessary to obtain, administer, and dispose
  122  of real and personal property, intangible property, business
  123  property, benefits, and income.
  124         (6) “Knowledge” means a person has actual knowledge of the
  125  fact, has received a notice or notification of the fact, or has
  126  reason to know the fact from all other facts and circumstances
  127  known to the person at the time in question. An organization
  128  that conducts activities through employees has notice or
  129  knowledge of a fact involving a power of attorney only from the
  130  time information was received by an employee having
  131  responsibility to act on matters involving the power of
  132  attorney, or would have had if brought to the employee’s
  133  attention if the organization had exercised reasonable
  134  diligence. An organization exercises reasonable diligence if the
  135  organization maintains reasonable routines for communicating
  136  significant information to the employee having responsibility to
  137  act on matters involving the power of attorney and there is
  138  reasonable compliance with the routines. Reasonable diligence
  139  does not require an employee to communicate information unless
  140  the communication is part of the individual’s regular duties or
  141  the individual knows that a matter involving the power of
  142  attorney would be materially affected by the information.
  143         (7) “Power of attorney” means a writing that grants
  144  authority to an agent to act in the place of the principal,
  145  whether or not the term is used in that writing.
  146         (8) “Presently exercisable general power of appointment
  147  means, with respect to property or a property interest subject
  148  to a power of appointment, power exercisable at the time in
  149  question to vest absolute ownership in the principal
  150  individually, the principal’s estate, the principal’s creditors,
  151  or the creditors of the principal’s estate. The term includes a
  152  power of appointment not exercisable until the occurrence of a
  153  specified event, the satisfaction of an ascertainable standard,
  154  or the passage of a specified period only after the occurrence
  155  of the specified event, the satisfaction of the ascertainable
  156  standard, or the passage of the specified period. The term does
  157  not include a power exercisable in a fiduciary capacity or only
  158  by will.
  159         (9) “Principal” means an individual who grants authority to
  160  an agent in a power of attorney.
  161         (10) “Property” means anything that may be the subject of
  162  ownership, whether real or personal, legal or equitable, or any
  163  interest or right therein.
  164         (11) “Record” means information that is inscribed on a
  165  tangible medium or that is stored in an electronic or other
  166  medium and is retrievable in perceivable form.
  167         (12) “Sign” means having present intent to authenticate or
  168  adopt a record to:
  169         (a) Execute or adopt a tangible symbol; or
  170         (b) Attach to, or logically associate with the record an
  171  electronic sound, symbol, or process.
  172         (13) “Third person” means any person other than the
  173  principal, or the agent in the agent’s capacity as agent.
  174         Section 5. Section 709.2103, Florida Statutes, is created
  175  to read:
  176         709.2103Applicability.—This part applies to all powers of
  177  attorney except:
  178         (1) A proxy or other delegation to exercise voting rights
  179  or management rights with respect to an entity;
  180         (2) A power created on a form prescribed by a government or
  181  governmental subdivision, agency, or instrumentality for a
  182  governmental purpose;
  183         (3) A power to the extent it is coupled with an interest in
  184  the subject of the power, including a power given to or for the
  185  benefit of a creditor in connection with a credit transaction;
  186  and
  187         (4) A power created by a person other than an individual.
  188         Section 6. Section 709.2104, Florida Statutes, is created
  189  to read:
  190         709.2104Durable power of attorney.—Except as otherwise
  191  provided under this part, a power of attorney is durable if it
  192  contains the words: “This durable power of attorney is not
  193  terminated by subsequent incapacity of the principal except as
  194  provided in chapter 709, Florida Statutes,” or similar words
  195  that show the principal’s intent that the authority conferred is
  196  exercisable notwithstanding the principal’s subsequent
  197  incapacity.
  198         Section 7. Section 709.2105, Florida Statutes, is created
  199  to read:
  200         709.2105Qualifications of agent; execution of power of
  201  attorney.—
  202         (1) The agent must be a natural person who is 18 years of
  203  age or older or a financial institution that has trust powers,
  204  has a place of business in this state, and is authorized to
  205  conduct trust business in this state.
  206         (2) A power of attorney must be signed by the principal and
  207  by two subscribing witnesses and be acknowledged by the
  208  principal before a notary public or as otherwise provided in s.
  209  695.03.
  210         Section 8. Section 709.2106, Florida Statutes, is created
  211  to read:
  212         709.2106 Validity of power of attorney.—
  213         (1) A power of attorney executed on or after October 1,
  214  2011, is valid if its execution complies with s. 709.2105.
  215         (2) A power of attorney executed before October 1, 2011, is
  216  valid if its execution complied with the law of this state at
  217  the time of execution.
  218         (3) A power of attorney executed in another state which
  219  does not comply with the execution requirements of this part is
  220  valid in this state if, when the power of attorney was executed,
  221  the power of attorney and its execution complied with the law of
  222  the state of execution. A third person who is requested to
  223  accept a power of attorney that is valid in this state solely
  224  because of this subsection may in good faith request, and rely
  225  upon, without further investigation, an opinion of counsel as to
  226  any matter of law concerning the power of attorney, including
  227  the due execution and validity of the power of attorney. An
  228  opinion of counsel requested under this subsection must be
  229  provided at the principal’s expense. A third person may accept a
  230  power of attorney that is valid in this state solely because of
  231  this subsection if the agent does not provide the requested
  232  opinion of counsel, and in such case, a third person has no
  233  liability for refusing to accept the power of attorney. This
  234  subsection does not affect any other rights of a third person
  235  who is requested to accept the power of attorney under this
  236  part, or any other provisions of applicable law.
  237         (4) A military power of attorney is valid if it is executed
  238  in accordance with 10 U.S.C. s. 1044b, as amended. A deployment
  239  contingent power of attorney may be signed in advance, is
  240  effective upon the deployment of the principal, and shall be
  241  afforded full force and effect by the courts of this state.
  242         (5) Except as otherwise provided in the power of attorney,
  243  a photocopy or electronically transmitted copy of an original
  244  power of attorney has the same effect as the original.
  245         Section 9. Section 709.2107, Florida Statutes, is created
  246  to read:
  247         709.2107 Meaning and effectiveness of power of attorney.
  248  The meaning and effectiveness of a power of attorney is governed
  249  by this part if the power of attorney:
  250         (1) Is used in this state; or
  251         (2) States that it is to be governed by the laws of this
  252  state.
  253         Section 10. Section 709.2108, Florida Statutes, is created
  254  to read:
  255         709.2108 When power of attorney is effective.—
  256         (1) Except as provided in this section, a power of attorney
  257  is exercisable when executed.
  258         (2) If a power of attorney executed before October 1, 2011,
  259  is conditioned on the principal’s lack of capacity and the power
  260  of attorney has not become exercisable before that date, the
  261  power of attorney is exercisable upon the delivery of the
  262  affidavit of a physician who has primary responsibility for the
  263  treatment and care of the principal and who is licensed to
  264  practice medicine or osteopathic medicine pursuant to chapter
  265  458 or chapter 459 as of the date of the affidavit. The
  266  affidavit executed by the physician must state that the
  267  physician is licensed to practice medicine or osteopathic
  268  medicine pursuant to chapter 458 or chapter 459, that the
  269  physician is the primary physician who has responsibility for
  270  the treatment and care of the principal, and that the physician
  271  believes that the principal lacks the capacity to manage
  272  property.
  273         (3) Except as provided in subsection (2) and s.
  274  709.2106(4), a power of attorney is ineffective if the power of
  275  attorney provides that it is to become effective at a future
  276  date or upon the occurrence of a future event or contingency.
  277         Section 11. Section 709.2109, Florida Statutes, is created
  278  to read:
  279         709.2109 Termination or suspension of power of attorney or
  280  agent’s authority.—
  281         (1) A power of attorney terminates when:
  282         (a) The principal dies;
  283         (b) The principal becomes incapacitated, if the power of
  284  attorney is not durable;
  285         (c) The principal is adjudicated totally or partially
  286  incapacitated by a court, unless the court determines that
  287  certain authority granted by the power of attorney is to be
  288  exercisable by the agent;
  289         (d) The principal revokes the power of attorney;
  290         (e) The power of attorney provides that it terminates;
  291         (f) The purpose of the power of attorney is accomplished;
  292  or
  293         (g) The agent’s authority terminates and the power of
  294  attorney does not provide for another agent to act under the
  295  power of attorney.
  296         (2) An agent’s authority is exercisable until the authority
  297  terminates. An agent’s authority terminates when:
  298         (a) The agent dies, becomes incapacitated, resigns, or is
  299  removed by a court;
  300         (b) An action is filed for the dissolution or annulment of
  301  the agent’s marriage to the principal or for their legal
  302  separation, unless the power of attorney otherwise provides; or
  303         (c) The power of attorney terminates.
  304         (3) If any person initiates judicial proceedings to
  305  determine the principal’s incapacity or for the appointment of a
  306  guardian advocate, the authority granted under the power of
  307  attorney is suspended until the petition is dismissed or
  308  withdrawn or the court enters an order authorizing the agent to
  309  exercise one or more powers granted under the power of attorney.
  310         (a) If an emergency arises after initiation of proceedings
  311  to determine incapacity and before adjudication regarding the
  312  principal’s capacity, the agent may petition the court in which
  313  the proceeding is pending for authorization to exercise a power
  314  granted under the power of attorney. The petition must set forth
  315  the nature of the emergency, the property or matter involved,
  316  and the power to be exercised by the agent.
  317         (b) Notwithstanding the provisions of this section, unless
  318  otherwise ordered by the court, a proceeding to determine
  319  incapacity does not affect the authority of the agent to make
  320  health care decisions for the principal, including, but not
  321  limited to, those provided in chapter 765. If the principal has
  322  executed a health care advance directive designating a health
  323  care surrogate, the terms of the directive control if the
  324  directive and the power of attorney are in conflict unless the
  325  power of attorney is later executed and expressly states
  326  otherwise.
  327         (4) Termination or suspension of an agent’s authority or of
  328  a power of attorney is not effective as to an agent who, without
  329  knowledge of the termination or suspension, acts in good faith
  330  under the power of attorney. An act so performed, unless
  331  otherwise invalid or unenforceable, binds the principal and the
  332  principal’s successors in interest.
  333         Section 12. Section 709.2110, Florida Statutes, is created
  334  to read:
  335         709.2110 Revocation of power of attorney.—
  336         (1) A principal may revoke a power of attorney by
  337  expressing the revocation in a subsequently executed power of
  338  attorney or other writing signed by the principal. The principal
  339  may give notice of the revocation to an agent who has accepted
  340  authority under the revoked power of attorney.
  341         (2) Except as provided in subsection (1), the execution of
  342  a power of attorney does not revoke a power of attorney
  343  previously executed by the principal.
  344         Section 13. Section 709.2111, Florida Statutes, is created
  345  to read:
  346         709.2111 Co-agents and successor agents.—
  347         (1) A principal may designate two or more persons to act as
  348  co-agents. Unless the power of attorney otherwise provides, each
  349  co-agent may exercise its authority independently.
  350         (2) A principal may designate one or more successor agents
  351  to act if an agent resigns, dies, becomes incapacitated, is not
  352  qualified to serve, or declines to serve. Unless the power of
  353  attorney otherwise provides, a successor agent:
  354         (a) Has the same authority as that granted to the original
  355  agent; and
  356         (b) May not act until the predecessor agents have resigned,
  357  have died, have become incapacitated, are no longer qualified to
  358  serve, or have declined to serve.
  359         (3) Except as otherwise provided in the power of attorney
  360  and subsection (4), an agent who does not participate in or
  361  conceal a breach of fiduciary duty committed by another agent,
  362  including a predecessor agent, is not liable for the actions or
  363  omissions of the other agent.
  364         (4) An agent who has actual knowledge of a breach or
  365  imminent breach of fiduciary duty by another agent, including a
  366  predecessor agent, must take any action reasonably appropriate
  367  in the circumstances to safeguard the principal’s best
  368  interests. If the agent in good faith believes that the
  369  principal is not incapacitated, giving notice to the principal
  370  is a sufficient action. An agent who fails to take action as
  371  required by this subsection is liable to the principal for the
  372  principal’s reasonably foreseeable damages that could have been
  373  avoided if the agent had taken such action.
  374         (5) A successor agent does not have a duty to review the
  375  conduct or decisions of a predecessor agent. Except as provided
  376  in subsection (4), a successor agent does not have a duty to
  377  institute any proceeding against a predecessor agent, or to file
  378  any claim against a predecessor agent’s estate, for any of the
  379  predecessor agent’s actions or omissions as agent.
  380         (6) If a power of attorney requires that two or more
  381  persons act together as co-agents, notwithstanding the
  382  requirement that they act together, one or more of the agents
  383  may delegate to a co-agent the authority to conduct banking
  384  transactions as provided in s. 709.2208(1), whether the
  385  authority to conduct banking transactions is specifically
  386  enumerated or incorporated by reference to that section in the
  387  power of attorney.
  388         Section 14. Section 709.2112, Florida Statutes, is created
  389  to read:
  390         709.2112 Reimbursement and compensation of agent.—
  391         (1) Unless the power of attorney otherwise provides, an
  392  agent is entitled to reimbursement of expenses reasonably
  393  incurred on behalf of the principal.
  394         (2) Unless the power of attorney otherwise provides, a
  395  qualified agent is entitled to compensation that is reasonable
  396  under the circumstances.
  397         (3) Notwithstanding any provision in the power of attorney,
  398  an agent may not be paid compensation unless the agent is a
  399  qualified agent.
  400         (4) For purposes of this section, the term “qualified
  401  agent” means an agent who is the spouse of the principal, an
  402  heir of the principal within the meaning of s. 732.103, a
  403  financial institution that has trust powers and a place of
  404  business in this state, an attorney or certified public
  405  accountant who is licensed in this state, or a natural person
  406  who is a resident of this state and who has never been an agent
  407  for more than three principals at the same time.
  408         Section 15. Section 709.2113, Florida Statutes, is created
  409  to read:
  410         709.2113 Agent’s acceptance of appointment.—Except as
  411  otherwise provided in the power of attorney, a person accepts
  412  appointment as an agent by exercising authority or performing
  413  duties as an agent or by any other assertion or conduct
  414  indicating acceptance. The scope of an agent’s acceptance is
  415  limited to those aspects of the power of attorney for which the
  416  agent’s assertions or conduct reasonably manifests acceptance.
  417         Section 16. Section 709.2114, Florida Statutes, is created
  418  to read:
  419         709.2114 Agent’s duties.—
  420         (1) An agent is a fiduciary. Notwithstanding the provisions
  421  in the power of attorney, an agent who has accepted appointment:
  422         (a) Must act only within the scope of authority granted in
  423  the power of attorney. In exercising that authority, the agent:
  424         1. May not act contrary to the principal’s reasonable
  425  expectations actually known by the agent;
  426         2. Must act in good faith;
  427         3.May not act in a manner that is contrary to the
  428  principal’s best interest, except as provided in paragraph
  429  (2)(d) and s. 709.2202; and
  430         4.Must attempt to preserve the principal’s estate plan, to
  431  the extent actually known by the agent, if preserving the plan
  432  is consistent with the principal’s best interest based on all
  433  relevant factors, including:
  434         a. The value and nature of the principal’s property;
  435         b. The principal’s foreseeable obligations and need for
  436  maintenance;
  437         c. Minimization of taxes, including income, estate,
  438  inheritance, generation-skipping transfer, and gift taxes;
  439         d. Eligibility for a benefit, a program, or assistance
  440  under a statute or rule; and
  441         e. The principal’s personal history of making or joining in
  442  making gifts;
  443         (b) May not delegate authority to a third person except as
  444  provided in s. 518.112;
  445         (c) Must keep a record of all receipts, disbursements, and
  446  transactions made on behalf of the principal; and
  447         (d) Must create and maintain an accurate inventory each
  448  time the agent accesses the principal’s safe-deposit box, if the
  449  power of attorney authorizes the agent to access the box.
  450         (2) Except as otherwise provided in the power of attorney,
  451  an agent who has accepted appointment shall:
  452         (a) Act loyally for the sole benefit of the principal;
  453         (b) Act so as not to create a conflict of interest that
  454  impairs the agent’s ability to act impartially in the
  455  principal’s best interest;
  456         (c) Act with the care, competence, and diligence ordinarily
  457  exercised by agents in similar circumstances; and
  458         (d) Cooperate with a person who has authority to make
  459  health care decisions for the principal in order to carry out
  460  the principal’s reasonable expectations to the extent actually
  461  known by the agent and, otherwise, act in the principal’s best
  462  interest.
  463         (3) An agent who acts in good faith is not liable to any
  464  beneficiary of the principal’s estate plan for failure to
  465  preserve the plan.
  466         (4) If an agent is selected by the principal because of
  467  special skills or expertise possessed by the agent or in
  468  reliance on the agent’s representation that the agent has
  469  special skills or expertise, the special skills or expertise
  470  must be considered in determining whether the agent has acted
  471  with care, competence, and diligence under the circumstances.
  472         (5) Absent a breach of duty to the principal, an agent is
  473  not liable if the value of the principal’s property declines.
  474         (6) Except as otherwise provided in the power of attorney,
  475  an agent is not required to disclose receipts, disbursements,
  476  transactions conducted on behalf of the principal, or safe
  477  deposit box inventories, unless ordered by a court or requested
  478  by the principal, a court-appointed guardian, another fiduciary
  479  acting for the principal, a governmental agency having authority
  480  to protect the welfare of the principal, or, upon the death of
  481  the principal, by the personal representative or successor in
  482  interest of the principal’s estate. If requested, the agent must
  483  comply with the request within 60 days or provide a writing or
  484  other record substantiating why additional time is needed and
  485  comply with the request within an additional 60 days.
  486         Section 17. Section 709.2115, Florida Statutes, is created
  487  to read:
  488         709.2115 Exoneration of agent.—A power of attorney may
  489  provide that the agent is not liable for any acts or decisions
  490  made by the agent in good faith and under the power of attorney,
  491  except to the extent the provision:
  492         (1) Relieves the agent of liability for breach of a duty
  493  committed dishonestly, with improper motive, or with reckless
  494  indifference to the purposes of the power of attorney or the
  495  best interest of the principal; or
  496         (2) Was inserted as a result of an abuse of a confidential
  497  or fiduciary relationship with the principal.
  498         Section 18. Section 709.2116, Florida Statutes, is created
  499  to read:
  500         709.2116 Judicial relief; conflicts of interests.—
  501         (1) A court may construe or enforce a power of attorney,
  502  review the agent’s conduct, terminate the agent’s authority,
  503  remove the agent, and grant other appropriate relief.
  504         (2) The following persons may petition the court:
  505         (a) The principal or the agent, including any nominated
  506  successor agent.
  507         (b) A guardian, conservator, trustee, or other fiduciary
  508  acting for the principal or the principal’s estate.
  509         (c) A person authorized to make health care decisions for
  510  the principal if the health care of the principal is affected by
  511  the actions of the agent.
  512         (d) Any other interested person if the person demonstrates
  513  to the court’s satisfaction that the person is interested in the
  514  welfare of the principal and has a good faith belief that the
  515  court’s intervention is necessary.
  516         (e) A governmental agency having regulatory authority to
  517  protect the welfare of the principal.
  518         (f) A person asked to honor the power of attorney.
  519         (3) In any proceeding commenced by filing a petition under
  520  this section, including, but not limited to, the unreasonable
  521  refusal of a third person to allow an agent to act pursuant to
  522  the power of attorney, and in challenges to the proper exercise
  523  of authority by the agent, the court shall award reasonable
  524  attorneys fees and costs.
  525         (4) If an agent’s exercise of a power is challenged in a
  526  judicial proceeding brought by or on behalf of the principal on
  527  the grounds that the exercise of the power was affected by a
  528  conflict of interest, and evidence is presented that the agent
  529  or an affiliate of the agent had a personal interest in the
  530  exercise of the power, the agent or affiliate has the burden of
  531  proving, by clear and convincing evidence that the agent acted:
  532         (a) Solely in the interest of the principal; or
  533         (b) In good faith in the principal’s best interest, and the
  534  conflict of interest was expressly authorized in the power of
  535  attorney.
  536         (5) For purposes of subsection (4):
  537         (a) A provision authorizing an agent to engage in a
  538  transaction affected by a conflict of interest which is inserted
  539  into a power of attorney as the result of the abuse of a
  540  fiduciary or confidential relationship with the principal by the
  541  agent or the agent’s affiliate is invalid.
  542         (b) Affiliates of an agent include:
  543         1. The agent’s spouse;
  544         2. The agent’s descendants, siblings, parents, or their
  545  spouses;
  546         3. A corporation or other entity in which the agent, or a
  547  person who owns a significant interest in the agent, has an
  548  interest that might affect the agent’s best judgment;
  549         4. A person or entity that owns a significant interest in
  550  the agent; or
  551         5. The agent acting in a fiduciary capacity for someone
  552  other than the principal.
  553         Section 19. Section 709.2117, Florida Statutes, is created
  554  to read:
  555         709.2117Agent’s liability.—An agent who violates this part
  556  is liable to the principal or the principal’s successors in
  557  interest for the amount required to:
  558         (1) Restore the value of the principal’s property to what
  559  it would have been had the violation not occurred; and
  560         (2) Reimburse the principal or the principal’s successors
  561  in interest for the attorney’s fees and costs paid from the
  562  principal’s funds on the agent’s behalf in defense of the
  563  agent’s actions.
  564         Section 20. Section 709.2118, Florida Statutes, is created
  565  to read:
  566         709.2118 Agent’s resignation.—Unless the power of attorney
  567  provides a different method for an agent’s resignation, an agent
  568  may resign by giving notice to the principal, to the guardian if
  569  the principal is incapacitated and one has been appointed for
  570  the principal, and to any co-agent, or if none, the next
  571  successor agent.
  572         Section 21. Section 709.2119, Florida Statutes, is created
  573  to read:
  574         709.2119 Acceptance of and reliance upon power of
  575  attorney.—
  576         (1)(a) A third person who in good faith accepts a power of
  577  attorney that appears to be executed in the manner required by
  578  law at the time of its execution may rely upon the power of
  579  attorney and the actions of the agent which are reasonably
  580  within the scope of the agent’s authority and may enforce any
  581  obligation created by the actions of the agent as if:
  582         1. The power of attorney were genuine, valid, and still in
  583  effect;
  584         2. The agent’s authority were genuine, valid, and still in
  585  effect; and
  586         3. The authority of the officer executing for or on behalf
  587  of a financial institution that has trust powers and acting as
  588  agent is genuine, valid, and still in effect.
  589         (b) For purposes of this subsection, and without limiting
  590  what constitutes good faith, a third person does not accept a
  591  power of attorney in good faith if the third person has notice
  592  that:
  593         1. The power of attorney is void, invalid, or terminated;
  594  or
  595         2. The purported agent’s authority is void, invalid,
  596  suspended, or terminated.
  597         (2) A third person may require:
  598         (a) An agent to execute an affidavit stating where the
  599  principal is domiciled; that the principal is not deceased; that
  600  there has been no revocation, or partial or complete termination
  601  by adjudication of incapacity or by the occurrence of an event
  602  referenced in the power of attorney; that there has been no
  603  suspension by initiation of proceedings to determine incapacity,
  604  or to appoint a guardian, of the principal; and, if the affiant
  605  is a successor agent, the reasons for the unavailability of the
  606  predecessor agents, if any, at the time the authority is
  607  exercised.
  608         (b) An officer of a financial institution acting as agent
  609  to execute a separate affidavit, or include in the form of the
  610  affidavit, the officer’s title and a statement that the officer
  611  has full authority to perform all acts and enter into all
  612  transactions authorized by the power of attorney for and on
  613  behalf of the financial institution in its capacity as agent. A
  614  written affidavit executed by the agent under this subsection
  615  may, but need not, be in the following form:
  617  STATE OF............
  618  COUNTY OF............
  620         Before me, the undersigned authority, personally appeared
  621  ...(attorney in fact)... (“Affiant”), who swore or affirmed
  622  that:
  623         1. Affiant is the attorney in fact named in the Durable
  624  Power of Attorney executed by ...(principal)... (“Principal”) on
  625  ...(date)....
  626         2. This Power of Attorney is currently exercisable by
  627  Affiant. The principal is domiciled in ...(insert name of state,
  628  territory, or foreign country)....
  629         3. To the best of Affiant’s knowledge after diligent search
  630  and inquiry:
  631         a. The Principal is not deceased;
  632         b. Affiant’s authority has not been suspended by initiation
  633  of proceedings to determine incapacity or to appoint a guardian
  634  or a guardian advocate; and
  635         c. There has been no revocation, or partial or complete
  636  termination, of the power of attorney or of Affiant’s authority.
  637         4. Affiant is acting within the scope of authority granted
  638  in the power of attorney.
  639         5. Affiant is the successor to ...(insert name of
  640  predecessor agent)..., who has resigned, died, become
  641  incapacitated, is no longer qualified to serve, has declined to
  642  serve as agent, or is otherwise unable to act, if applicable.
  643         6. Affiant agrees not to exercise any powers granted by the
  644  Durable Power of Attorney if Affiant attains knowledge that it
  645  has been revoked, has been partially or completely terminated or
  646  suspended, or is no longer valid because of the death or
  647  adjudication of incapacity of the Principal.
  649  ................
  650  ...(Affiant)...
  652         Sworn to (or affirmed) and subscribed before me this ....
  653  day of ...(month)..., ...(year)..., by ...(name of person making
  654  statement)...
  656  ...(Signature of Notary Public-State of Florida)...
  658  ...(Print, Type, or Stamp Commissioned Name of Notary Public)...
  660  Personally Known OR Produced Identification
  661  ...(Type of Identification Produced)...
  663         (3) A third person who is asked to accept a power of
  664  attorney that appears to be executed in accordance with s.
  665  709.2103 may in good faith request, and rely upon, without
  666  further investigation:
  667         (a) A verified English translation of the power of attorney
  668  if the power of attorney contains, in whole or in part, language
  669  other than English;
  670         (b) An opinion of counsel as to any matter of law
  671  concerning the power of attorney if the third person making the
  672  request provides in a writing or other record the reason for the
  673  request; or
  674         (c) The affidavit described in subsection (2).
  675         (4) An English translation or an opinion of counsel
  676  requested under this section must be provided at the principal’s
  677  expense unless the request is made after the time specified in
  678  s. 709.2120(1) for acceptance or rejection of the power of
  679  attorney.
  680         (5) Third persons who act in reliance upon the authority
  681  granted to an agent and in accordance with the instructions of
  682  the agent shall be held harmless by the principal from any loss
  683  suffered or liability incurred as a result of actions taken
  684  before the receipt of notice as provided in s. 709.2121. A third
  685  person who acts in good faith upon any representation,
  686  direction, decision, or act of the agent is not liable to the
  687  principal or the principal’s estate, beneficiaries, or joint
  688  owners for those acts.
  689         (6) The acts of an agent under a power of attorney are as
  690  valid and binding on the principal or the principal’s estate as
  691  if the principal were alive and competent if, in connection with
  692  any activity pertaining to hostilities in which the United
  693  States is then engaged, the principal is officially listed or
  694  reported by a branch of the United States Armed Forces in a
  695  missing status as defined in 37 U.S.C. s. 551 or 5 U.S.C. s.
  696  5561, regardless of whether the principal is dead, alive, or
  697  incompetent. Homestead property held as tenants by the
  698  entireties may not be conveyed by a power of attorney regulated
  699  under this provision until 1 year after the first official
  700  report or listing of the principal as missing or missing in
  701  action. An affidavit of an officer of the Armed Forces having
  702  maintenance and control of the records pertaining to those
  703  missing or missing in action that the principal has been in that
  704  status for a given period is conclusive presumption of the fact.
  705         Section 22. Section 709.2120, Florida Statutes, is created
  706  to read:
  707         709.2120Refusal to accept power of attorney.—
  708         (1) Except as provided in subsection (2):
  709         (a) A third person must accept or reject a power of
  710  attorney within a reasonable time. A third person who rejects a
  711  power of attorney must state in writing the reason for the
  712  rejection.
  713         (b) Four days, excluding Saturdays, Sundays, and legal
  714  holidays, are presumed to be a reasonable time for a financial
  715  institution to accept or reject a power of attorney with respect
  716  to:
  717         1. A banking transaction, if the power of attorney
  718  expressly contains authority to conduct banking transactions
  719  pursuant to s. 709.2208(1); or
  720         2. A security transaction, if the power of attorney
  721  expressly contains authority to conduct security transactions
  722  pursuant to s. 709.2208(2).
  723         (c) A third person may not require an additional or
  724  different form of power of attorney for authority granted in the
  725  power of attorney presented.
  726         (2) A third person is not required to accept a power of
  727  attorney if:
  728         (a) The third person is not otherwise required to engage in
  729  a transaction with the principal in the same circumstances;
  730         (b) The third person has knowledge of the termination or
  731  suspension of the agent’s authority or of the power of attorney
  732  before exercising the power;
  733         (c) A timely request by the third person for an affidavit,
  734  English translation, or opinion of counsel under s. 709.2119(4)
  735  is refused by the agent;
  736         (d) Except as provided in paragraph (b), the third person
  737  believes in good faith that the power is not valid or that the
  738  agent does not have authority to perform the act requested; or
  739         (e) The third person makes, or has knowledge that another
  740  person has made, a report to the local adult protective services
  741  office stating a good faith belief that the principal may be
  742  subject to physical or financial abuse, neglect, exploitation,
  743  or abandonment by the agent or a person acting for or with the
  744  agent.
  745         (3) A third person who, in violation of this section,
  746  refuses to accept a power of attorney is subject to:
  747         (a) A court order mandating acceptance of the power of
  748  attorney; and
  749         (b) Liability for damages, including reasonable attorney’s
  750  fees and costs, incurred in any action or proceeding that
  751  confirms, for the purpose tendered, the validity of the power of
  752  attorney or mandates acceptance of the power of attorney.
  753         Section 23. Section 709.2121, Florida Statutes, is created
  754  to read:
  755         709.2121 Notice.—
  756         (1) A notice, including a notice of revocation, notice of
  757  partial or complete termination by adjudication of incapacity or
  758  by the occurrence of an event referenced in the power of
  759  attorney, notice of death of the principal, notice of suspension
  760  by initiation of proceedings to determine incapacity or to
  761  appoint a guardian, or other notice, is not effective until
  762  written notice is provided to the agent or any third persons
  763  relying upon a power of attorney.
  764         (2) Notice must be in writing and must be accomplished in a
  765  manner reasonably suitable under the circumstances and likely to
  766  result in receipt of the notice or document. Permissible methods
  767  of notice or for sending a document include first-class mail,
  768  personal delivery, delivery to the person’s last known place of
  769  residence or place of business, or a properly directed facsimile
  770  or other electronic message.
  771         (3) Notice to a financial institution must contain the
  772  name, address, and the last four digits of the principal’s
  773  taxpayer identification number and be directed to an officer or
  774  a manager of the financial institution in this state.
  775         (4) Notice is effective when given, except that notice upon
  776  a financial institution, brokerage company, or title insurance
  777  company is not effective until 5 days, excluding Saturdays,
  778  Sundays, and legal holidays, after it is received.
  779         Section 24. Section 709.2201, Florida Statutes, is created
  780  to read:
  781         709.2201Authority of agent.—
  782         (1) Except as provided in this section or other applicable
  783  law, an agent may only exercise authority specifically granted
  784  to the agent in the power of attorney and any authority
  785  reasonably necessary to give effect to that express grant of
  786  specific authority. General provisions in a power of attorney
  787  which do not identify the specific authority granted, such as
  788  provisions purporting to give the agent authority to do all acts
  789  that the principal can do, are not express grants of specific
  790  authority and do not grant any authority to the agent. Court
  791  approval is not required for any action of the agent in
  792  furtherance of an express grant of specific authority.
  793         (2) As a confirmation of the law in effect in this state
  794  when this part became effective, such authorization may include,
  795  without limitation, authority to:
  796         (a) Execute stock powers or similar documents on behalf of
  797  the principal and delegate to a transfer agent or similar person
  798  the authority to register any stocks, bonds, or other securities
  799  into or out of the principal’s or nominee’s name.
  800         (b) Convey or mortgage homestead property. However, if the
  801  principal is married, the agent may not mortgage or convey
  802  homestead property without joinder of the principal’s spouse or
  803  the spouse’s guardian. Joinder by a spouse may be accomplished
  804  by the exercise of authority in a power of attorney executed by
  805  the joining spouse, and either spouse may appoint the other as
  806  his or her agent.
  807         (c) If such authority is specifically granted in a durable
  808  power of attorney, make all health care decisions on behalf of
  809  the principal, including, but not limited to, those set forth in
  810  chapter 765.
  811         (3) Notwithstanding the provisions of this section, an
  812  agent may not:
  813         (a) Perform duties under a contract that requires the
  814  exercise of personal services of the principal;
  815         (b) Make any affidavit as to the personal knowledge of the
  816  principal;
  817         (c) Vote in any public election on behalf of the principal;
  818         (d) Execute or revoke any will or codicil for the
  819  principal; or
  820         (e) Exercise powers and authority granted to the principal
  821  as trustee or as court-appointed fiduciary.
  822         (4) Subject to s. 709.2202, if the subjects over which
  823  authority is granted in a power of attorney are similar or
  824  overlap, the broadest authority controls.
  825         (5) Authority granted in a power of attorney is exercisable
  826  with respect to property that the principal has when the power
  827  of attorney is executed and to property that the principal
  828  acquires later, whether or not the property is located in this
  829  state and whether or not the authority is exercised or the power
  830  of attorney is executed in this state.
  831         (6) An act performed by an agent pursuant to a power of
  832  attorney has the same effect and inures to the benefit of and
  833  binds the principal and the principal’s successors in interest
  834  as if the principal had performed the act.
  835         Section 25. Section 709.2202, Florida Statutes, is created
  836  to read:
  837         709.2202Authority that requires separate signed
  838  enumeration.—
  839         (1) Notwithstanding s. 709.2201, an agent may exercise the
  840  following authority only if the principal signed or initialed
  841  next to each specific enumeration of the authority, the exercise
  842  of the authority is consistent with the agent’s duties under s.
  843  709.2114, and the exercise is not otherwise prohibited by
  844  another agreement or instrument:
  845         (a) Create an inter vivos trust;
  846         (b) With respect to a trust created by or on behalf of the
  847  principal, amend, modify, revoke, or terminate the trust, but
  848  only if the trust instrument explicitly provides for amendment,
  849  modification, revocation, or termination by the settlor’s agent;
  850         (c) Make a gift, subject to subsection (3);
  851         (d) Create or change rights of survivorship;
  852         (e) Create or change a beneficiary designation;
  853         (f) Waive the principal’s right to be a beneficiary of a
  854  joint and survivor annuity, including a survivor benefit under a
  855  retirement plan; or
  856         (g) Disclaim property and powers of appointment.
  857         (2) Notwithstanding a grant of authority to do an act
  858  described in subsection (1), unless the power of attorney
  859  otherwise provides, an agent who is not an ancestor, spouse, or
  860  descendant of the principal may not exercise authority to create
  861  in the agent, or in an individual to whom the agent owes a legal
  862  obligation of support, an interest in the principal’s property,
  863  whether by gift, right of survivorship, beneficiary designation,
  864  disclaimer, or otherwise.
  865         (3) Unless the power of attorney otherwise provides, a
  866  provision in a power of attorney granting general authority with
  867  respect to gifts authorizes the agent to only:
  868         (a) Make outright to, or for the benefit of, a person a
  869  gift of any of the principal’s property, including by the
  870  exercise of a presently exercisable general power of appointment
  871  held by the principal, in an amount per donee not to exceed the
  872  annual dollar limits of the federal gift tax exclusion under 26
  873  U.S.C. s. 2503(b), as amended, without regard to whether the
  874  federal gift tax exclusion applies to the gift, or if the
  875  principal’s spouse agrees to consent to a split gift pursuant to
  876  26 U.S.C. s. 2513, as amended, in an amount per donee not to
  877  exceed twice the annual federal gift tax exclusion limit; and
  878         (b) Consent, pursuant to 26 U.S.C. s. 2513, as amended, to
  879  the splitting of a gift made by the principal’s spouse in an
  880  amount per donee not to exceed the aggregate annual gift tax
  881  exclusions for both spouses.
  882         (4) Notwithstanding subsection (1), if a power of attorney
  883  is otherwise sufficient to grant an agent authority to conduct
  884  banking transactions, as provided in s. 709.2208(1), conduct
  885  investment transactions as provided in s. 709.2208(2), or
  886  otherwise make additions to or withdrawals from an account of
  887  the principal, making a deposit to or withdrawal from an
  888  insurance policy, retirement account, individual retirement
  889  account, benefit plan, bank account, or any other account held
  890  jointly or otherwise held in survivorship or payable on death,
  891  is not considered to be a change to the survivorship feature or
  892  beneficiary designation, and no further specific authority is
  893  required for the agent to exercise such authority. A bank or
  894  other financial institution does not have a duty to inquire as
  895  to the appropriateness of the agent’s exercise of that authority
  896  and is not liable to the principal or any other person for
  897  actions taken in good faith reliance on the appropriateness of
  898  the agent’s actions. This subsection does not eliminate the
  899  agent’s fiduciary duties to the principal with respect to any
  900  exercise of the power of attorney.
  901         (5) This section does not apply to a power of attorney
  902  executed before October 1, 2011.
  903         Section 26. Section 709.2208, Florida Statutes, is created
  904  to read:
  905         709.2208 Banks and other financial institutions.—
  906         (1) A power of attorney that includes the statement that
  907  the agent has “authority to conduct banking transactions as
  908  provided in section 709.2208(1), Florida Statutes” grants
  909  general authority to the agent to engage in the following
  910  transactions with financial institutions without additional
  911  specific enumeration in the power of attorney:
  912         (a) Establish, continue, modify, or terminate an account or
  913  other banking arrangement with a financial institution.
  914         (b) Contract for services available from a financial
  915  institution, including renting a safe-deposit box or space in a
  916  vault.
  917         (c) Withdraw, by check, order, electronic funds transfer,
  918  or otherwise, money or property of the principal deposited with
  919  or left in the custody of a financial institution.
  920         (d) Receive statements of account, vouchers, notices, and
  921  similar documents from a financial institution and act with
  922  respect to them.
  923         (e) Purchase cashier’s checks, official checks, counter
  924  checks, bank drafts, money orders, and similar instruments.
  925         (f) Endorse and negotiate checks, cashier’s checks,
  926  official checks, drafts, and other negotiable paper of the
  927  principal or payable to the principal or the principal’s order,
  928  transfer money, receive the cash or other proceeds of those
  929  transactions, and accept a draft drawn by a person upon the
  930  principal and pay it when due.
  931         (g) Apply for, receive, and use debit cards, electronic
  932  transaction authorizations, and traveler’s checks from a
  933  financial institution.
  934         (h) Use, charge, or draw upon any line of credit, credit
  935  card, or other credit established by the principal with a
  936  financial institution.
  937         (i) Consent to an extension of the time of payment with
  938  respect to commercial paper or a financial transaction with a
  939  financial institution.
  940         (2) A power of attorney that specifically includes the
  941  statement that the agent has “authority to conduct investment
  942  transactions as provided in section 709.2208(2), Florida
  943  Statutes” grants general authority to the agent with respect to
  944  securities held by financial institutions to take the following
  945  actions without additional specific enumeration in the power of
  946  attorney:
  947         (a) Buy, sell, and exchange investment instruments.
  948         (b) Establish, continue, modify, or terminate an account
  949  with respect to investment instruments.
  950         (c) Pledge investment instruments as security to borrow,
  951  pay, renew, or extend the time of payment of a debt of the
  952  principal.
  953         (d) Receive certificates and other evidences of ownership
  954  with respect to investment instruments.
  955         (e) Exercise voting rights with respect to investment
  956  instruments in person or by proxy, enter into voting trusts, and
  957  consent to limitations on the right to vote.
  958         (f) Sell commodity futures contracts and call and put
  959  options on stocks and stock indexes.
  961  For purposes of this subsection, the term “investment
  962  instruments” means stocks, bonds, mutual funds, and all other
  963  types of securities and financial instruments, whether held
  964  directly, indirectly, or in any other manner, including shares
  965  or interests in a private investment fund, including, but not
  966  limited to, a private investment fund organized as a limited
  967  partnership, a limited liability company, a statutory or common
  968  law business trust, a statutory trust, or a real estate
  969  investment trust, joint venture, or any other general or limited
  970  partnership; derivatives or other interests of any nature in
  971  securities such as options, options on futures, and variable
  972  forward contracts; mutual funds; common trust funds; money
  973  market funds; hedge funds; private equity or venture capital
  974  funds; insurance contracts; and other entities or vehicles
  975  investing in securities or interests in securities whether
  976  registered or otherwise, except commodity futures contracts and
  977  call and put options on stocks and stock indexes.
  978         Section 27. Section 709.2301, Florida Statutes, is created
  979  to read:
  980         709.2301 Principles of law and equity.—The common law of
  981  agency and principles of equity supplement this part, except as
  982  modified by this part or other state law.
  983         Section 28. Section 709.2302, Florida Statutes, is created
  984  to read:
  985         709.2302 Laws applicable to financial institutions and
  986  entities.—This part does not supersede any other law applicable
  987  to financial institutions or other entities, and that law
  988  controls if inconsistent with this part.
  989         Section 29. Section 709.2303, Florida Statutes, is created
  990  to read:
  991         709.2303 Remedies under other law.—The remedies under this
  992  part are not exclusive and do not abrogate any right or remedy
  993  under any other law other than this part.
  994         Section 30. Section 709.2401, Florida Statutes, is created
  995  to read:
  996         709.2401 Relation to electronic signatures in federal law.
  997  This part modifies, limits, and supersedes the federal
  998  Electronic Signatures in Global and National Commerce Act, 15
  999  U.S.C. s. 7001 et seq., but does not modify, limit, or supersede
 1000  s. 101(c) of that act, or authorize electronic delivery of any
 1001  of the notices described in s. 103(b) of that act.
 1002         Section 31. Section 709.2402, Florida Statutes, is created
 1003  to read:
 1004         709.2402 Effect on existing powers of attorney.—Except as
 1005  otherwise provided in this part:
 1006         (1) With respect to formalities of execution, this part
 1007  applies to a power of attorney created on or after October 1,
 1008  2011.
 1009         (2) With respect to all matters other than formalities of
 1010  execution, this part applies to a power of attorney regardless
 1011  of the date of creation.
 1012         (3) With respect to a power of attorney existing on October
 1013  1, 2011, this part does not invalidate such power of attorney
 1014  and it shall remain in effect. If a right was acquired under any
 1015  other law before October 1, 2011, that law continues to apply to
 1016  the right even if it has been repealed or superseded.
 1017         (4) An act of an agent occurring before October 1, 2011, is
 1018  not affected by this part.
 1019         Section 32. Subsection (5) of section 736.0602, Florida
 1020  Statutes, is amended to read:
 1021         736.0602 Revocation or amendment of revocable trust.—
 1022         (5) A settlor’s powers with respect to revocation,
 1023  amendment, or distribution of trust property may be exercised by
 1024  an agent under a power of attorney only as authorized by s.
 1025  709.2202 709.08.
 1026         Section 33. Sections 709.01, 709.015, 709.08, and 709.11
 1027  Florida Statutes, are repealed.
 1028         Section 34. This act shall take effect October 1, 2011.