CS/HB 815

1
A bill to be entitled
2An act relating to powers of attorney; providing
3directives to the Division of Statutory Revision; creating
4s. 709.2101, F.S.; providing a short title; creating s.
5709.2102, F.S.; providing definitions; creating s.
6709.2103, F.S.; providing applicability; providing
7exceptions; creating s. 709.2104, F.S.; providing for a
8durable power of attorney; creating s. 709.2105, F.S.;
9specifying the qualifications for an agent; providing
10requirements for the execution of a power of attorney;
11creating s. 709.2106, F.S.; providing for the validity of
12powers of attorney created by a certain date or in another
13jurisdiction; providing for the validity of a military
14power of attorney; providing for the validity of a
15photocopy or electronic copy of a power of attorney;
16creating s. 709.2107, F.S.; providing for the meaning and
17effectiveness of a power of attorney; creating s.
18709.2108, F.S.; specifying when a power of attorney is
19effective; providing limitations with respect to a future
20power of attorney; creating s. 709.2109, F.S.; providing
21for the termination or suspension of a power of attorney
22or an agent's authority; creating s. 709.2110, F.S.;
23providing for the revocation of a power of attorney;
24creating s. 709.2111, F.S.; providing for the designation
25of co-agents and successor agents; specifying the
26responsibility of a successor agent for a predecessor
27agent; authorizing a co-agent to delegate certain banking
28transaction to a co-agent; creating s. 709.2112, F.S.;
29providing for the reimbursement and compensation of
30agents; creating s. 709.2113, F.S.; providing for the
31agent's acceptance of appointment; creating s. 709.2114,
32F.S.; providing for an agent's duties; limiting an agent's
33liability, absent a breach of duty; requiring that an
34agent make certain disclosures upon order of a court, upon
35the death of the principal, or under certain other
36circumstances; creating s. 709.2115, F.S.; providing for
37the exoneration of an agent; providing exceptions;
38creating s. 709.2116, F.S.; providing for judicial relief;
39authorizing the award of attorney's fees and costs;
40providing for a judicial challenge to an agent's exercise
41of power based on a conflict of interest; specifying the
42burden of proof required to overcome that challenge;
43creating s. 709.2117, F.S.; providing for an agent's
44liability; creating s. 709.2118, F.S.; providing for an
45agent's resignation; creating s. 709.2119, F.S.; providing
46for the acceptance of and reliance upon a power of
47attorney; authorizing a third party to require an
48affidavit; providing for the validity of acts taken on
49behalf of a principal who is reported as missing by a
50branch of the United States Armed Forces; providing a
51restriction on the conveyance of homestead property held
52by such a principal; creating s. 709.2120, F.S.; providing
53for liability if a third person refuses to accept a power
54of attorney under certain circumstances; providing for an
55award of damages and attorney's fees and costs; creating
56s. 709.2121, F.S.; requiring that notice of certain events
57be provided to an agent or other third person; specifying
58the form of the notice and when it is effective; creating
59s. 709.2201, F.S.; providing for the authority of an
60agent; providing limitations; providing that an agent's
61authority extends to property later acquired by the
62principal; creating s. 709.2202, F.S.; specifying that
63certain authority requires separate signed enumeration;
64restricting the amount of certain gifts made by an agent;
65specifying certain acts that do not require specific
66authority if the agent is authorized to conduct banking
67transactions; limiting the application of such provision;
68creating s. 709.2208, F.S.; providing for authority to
69conduct banking and security transactions; creating s.
70709.2301, F.S.; specifying the role of common law;
71creating s. 709.2302, F.S.; providing for the preemption
72of laws relating to financial institutions; creating s.
73709.2303, F.S.; providing for the recognition of other
74remedies; creating s. 709.2401, F.S.; specifying the
75relationship of the act to federal law regulating
76electronic signatures; creating s. 709.2402, F.S.;
77providing for powers of attorney executed before the
78effective date of the act; amending s. 736.0602, F.S.;
79conforming a cross-reference; repealing s. 709.01, F.S.,
80relating to the authority of an agent when the principal
81is dead; repealing s. 709.015, F.S., relating to the
82authority of an agent when the principal is missing;
83repealing s. 709.08, F.S., relating to durable powers of
84attorney; repealing s. 709.11, F.S., relating to a
85deployment-contingent power of attorney; providing an
86effective date.
87
88Be It Enacted by the Legislature of the State of Florida:
89
90     Section 1.  The Division of Statutory Revision is requested
91to create part I of chapter 709, Florida Statutes, consisting of
92ss. 709.02-709.07, entitled "POWERS OF APPOINTMENT."
93     Section 2.  The Division of Statutory Revision is requested
94to create part II of chapter 709, Florida Statutes, consisting
95of ss. 709.2101-709.2402, entitled "POWERS OF ATTORNEY."
96     Section 3.  Section 709.2101, Florida Statutes, is created
97to read:
98     709.2101  Short title.-This part may be cited as the
99"Florida Power of Attorney Act."
100     Section 4.  Section 709.2102, Florida Statutes, is created
101to read:
102     709.2102  Definitions.-As used in this part, the term:
103     (1)  "Agent" means a person granted authority to act for a
104principal under a power of attorney, whether denominated an
105agent, attorney in fact, or otherwise. The term includes an
106original agent, co-agent, and successor agent.
107     (2)  "Durable" means, with respect to a power of attorney,
108not terminated by the principal's incapacity.
109     (3)  "Electronic" means technology having electrical,
110digital, magnetic, wireless, optical, electromagnetic, or
111similar capabilities.
112     (4)  "Financial institution" has the same meaning as in s.
113655.005.
114     (5)  "Incapacity" means the inability of an individual to
115take those actions necessary to obtain, administer, and dispose
116of real and personal property, intangible property, business
117property, benefits, and income.
118     (6)  "Knowledge" means a person has actual knowledge of the
119fact, has received a notice or notification of the fact, or has
120reason to know the fact from all other facts and circumstances
121known to the person at the time in question. An organization
122that conducts activities through employees has notice or
123knowledge of a fact involving a power of attorney only from the
124time information was received by an employee having
125responsibility to act on matters involving the power of
126attorney, or would have had if brought to the employee's
127attention if the organization had exercised reasonable
128diligence. An organization exercises reasonable diligence if the
129organization maintains reasonable routines for communicating
130significant information to the employee having responsibility to
131act on matters involving the power of attorney and there is
132reasonable compliance with the routines. Reasonable diligence
133does not require an employee to communicate information unless
134the communication is part of the individual's regular duties or
135the individual knows that a matter involving the power of
136attorney would be materially affected by the information.
137     (7)  "Power of attorney" means a writing that grants
138authority to an agent to act in the place of the principal,
139whether or not the term is used in that writing.
140     (8)  "Presently exercisable general power of appointment"
141means, with respect to property or a property interest subject
142to a power of appointment, power exercisable at the time in
143question to vest absolute ownership in the principal
144individually, the principal's estate, the principal's creditors,
145or the creditors of the principal's estate. The term includes a
146power of appointment not exercisable until the occurrence of a
147specified event, the satisfaction of an ascertainable standard,
148or the passage of a specified period only after the occurrence
149of the specified event, the satisfaction of the ascertainable
150standard, or the passage of the specified period. The term does
151not include a power exercisable in a fiduciary capacity or only
152by will.
153     (9)  "Principal" means an individual who grants authority
154to an agent in a power of attorney.
155     (10)  "Property" means anything that may be the subject of
156ownership, whether real or personal, legal or equitable, or any
157interest or right therein.
158     (11)  "Record" means information that is inscribed on a
159tangible medium or that is stored in an electronic or other
160medium and is retrievable in perceivable form.
161     (12)  "Sign" means having present intent to authenticate or
162adopt a record to:
163     (a)  Execute or adopt a tangible symbol; or
164     (b)  Attach to, or logically associate with the record an
165electronic sound, symbol, or process.
166     (13)  "Third person" means any person other than the
167principal, or the agent in the agent's capacity as agent.
168     Section 5.  Section 709.2103, Florida Statutes, is created
169to read:
170     709.2103  Applicability.-This part applies to all powers of
171attorney except:
172     (1)  A proxy or other delegation to exercise voting rights
173or management rights with respect to an entity;
174     (2)  A power created on a form prescribed by a government
175or governmental subdivision, agency, or instrumentality for a
176governmental purpose;
177     (3)  A power to the extent it is coupled with an interest
178in the subject of the power, including a power given to or for
179the benefit of a creditor in connection with a credit
180transaction; and
181     (4)  A power created by a person other than an individual.
182     Section 6.  Section 709.2104, Florida Statutes, is created
183to read:
184     709.2104  Durable power of attorney.-Except as otherwise
185provided under this part, a power of attorney is durable if it
186contains the words: "This durable power of attorney is not
187terminated by subsequent incapacity of the principal except as
188provided in chapter 709, Florida Statutes," or similar words
189that show the principal's intent that the authority conferred is
190exercisable notwithstanding the principal's subsequent
191incapacity.
192     Section 7.  Section 709.2105, Florida Statutes, is created
193to read:
194     709.2105  Qualifications of agent; execution of power of
195attorney.-
196     (1)  The agent must be a natural person who is 18 years of
197age or older or a financial institution that has trust powers,
198has a place of business in this state, and is authorized to
199conduct trust business in this state.
200     (2)  A power of attorney must be signed by the principal
201and by two subscribing witnesses and be acknowledged by the
202principal before a notary public or as otherwise provided in s.
203695.03.
204     Section 8.  Section 709.2106, Florida Statutes, is created
205to read:
206     709.2106  Validity of power of attorney.-
207     (1)  A power of attorney executed on or after October 1,
2082011, is valid if its execution complies with s. 709.2105.
209     (2)  A power of attorney executed before October 1, 2011,
210is valid if its execution complied with the law of this state at
211the time of execution.
212     (3)  A power of attorney executed in another state which
213does not comply with the execution requirements of this part is
214valid in this state if, when the power of attorney was executed,
215the power of attorney and its execution complied with the law of
216the state of execution. A third person who is requested to
217accept a power of attorney that is valid in this state solely
218because of this subsection may in good faith request, and rely
219upon, without further investigation, an opinion of counsel as to
220any matter of law concerning the power of attorney, including
221the due execution and validity of the power of attorney. An
222opinion of counsel requested under this subsection must be
223provided at the principal's expense. A third person may accept a
224power of attorney that is valid in this state solely because of
225this subsection if the agent does not provide the requested
226opinion of counsel, and in such case, a third person has no
227liability for refusing to accept the power of attorney. This
228subsection does not affect any other rights of a third person
229who is requested to accept the power of attorney under this
230part, or any other provisions of applicable law.
231     (4)  A military power of attorney is valid if it is
232executed in accordance with 10 U.S.C. s. 1044b, as amended. A
233deployment-contingent power of attorney may be signed in
234advance, is effective upon the deployment of the principal, and
235shall be afforded full force and effect by the courts of this
236state.
237     (5)  Except as otherwise provided in the power of attorney,
238a photocopy or electronically transmitted copy of an original
239power of attorney has the same effect as the original.
240     Section 9.  Section 709.2107, Florida Statutes, is created
241to read:
242     709.2107  Meaning and effectiveness of power of attorney.-
243The meaning and effectiveness of a power of attorney is governed
244by this part if the power of attorney:
245     (1)  Is used in this state; or
246     (2)  States that it is to be governed by the laws of this
247state.
248     Section 10.  Section 709.2108, Florida Statutes, is created
249to read:
250     709.2108  When power of attorney is effective.-
251     (1)  Except as provided in this section, a power of
252attorney is exercisable when executed.
253     (2)  If a power of attorney executed before October 1,
2542011, is conditioned on the principal's lack of capacity to
255manage property as defined in s. 744.102(12)(a), and the power
256of attorney has not become exercisable before that date, the
257power of attorney is exercisable upon the delivery of the
258affidavit of a physician who has primary responsibility for the
259treatment and care of the principal and who is licensed to
260practice medicine pursuant to chapter 458 or chapter 459 as of
261the date of the affidavit. The affidavit must state where the
262physician is licensed to practice medicine, that the physician
263is the primary physician who has responsibility for the
264treatment and care of the principal, and that the physician
265believes that the principal lacks the capacity to manage
266property.
267     (3)  Except as provided in subsection (2) and section
268709.2106(4), a power of attorney is ineffective if the power of
269attorney provides that it is to become effective at a future
270date or upon the occurrence of a future event or contingency.
271     Section 11.  Section 709.2109, Florida Statutes, is created
272to read:
273     709.2109  Termination or suspension of power of attorney or
274agent's authority.-
275     (1)  A power of attorney terminates when:
276     (a)  The principal dies;
277     (b)  The principal becomes incapacitated, if the power of
278attorney is not durable;
279     (c)  The principal is adjudicated totally or partially
280incapacitated by a court, unless the court determines that
281certain authority granted by the power of attorney is to be
282exercisable by the agent;
283     (d)  The principal revokes the power of attorney;
284     (e)  The power of attorney provides that it terminates;
285     (f)  The purpose of the power of attorney is accomplished;
286or
287     (g)  The agent's authority terminates and the power of
288attorney does not provide for another agent to act under the
289power of attorney.
290     (2)  An agent's authority is exercisable until the
291authority terminates. An agent's authority terminates when:
292     (a)  The agent dies, becomes incapacitated, resigns, or is
293removed by a court;
294     (b)  An action is filed for the dissolution or annulment of
295the agent's marriage to the principal or for their legal
296separation, unless the power of attorney otherwise provides; or
297     (c)  The power of attorney terminates.
298     (3)  If any person initiates judicial proceedings to
299determine the principal's incapacity or for the appointment of a
300guardian advocate, the authority granted under the power of
301attorney is suspended until the petition is dismissed or
302withdrawn or the court enters an order authorizing the agent to
303exercise one or more powers granted under the power of attorney.
304     (a)  If an emergency arises after initiation of proceedings
305to determine incapacity and before adjudication regarding the
306principal's capacity, the agent may petition the court in which
307the proceeding is pending for authorization to exercise a power
308granted under the power of attorney. The petition must set forth
309the nature of the emergency, the property or matter involved,
310and the power to be exercised by the agent.
311     (b)  Notwithstanding the provisions of this section, unless
312otherwise ordered by the court, a proceeding to determine
313incapacity does not affect the authority of the agent to make
314health care decisions for the principal, including, but not
315limited to, those provided in chapter 765. If the principal has
316executed a health care advance directive designating a health
317care surrogate, the terms of the directive control if the
318directive and the power of attorney are in conflict unless the
319power of attorney is later executed and expressly states
320otherwise.
321     (4)  Termination or suspension of an agent's authority or
322of a power of attorney is not effective as to an agent who,
323without knowledge of the termination or suspension, acts in good
324faith under the power of attorney. An act so performed, unless
325otherwise invalid or unenforceable, binds the principal and the
326principal's successors in interest.
327     Section 12.  Section 709.2110, Florida Statutes, is created
328to read:
329     709.2110  Revocation of power of attorney.-
330     (1)  A principal may revoke a power of attorney by
331expressing the revocation in a subsequently executed power of
332attorney or other writing signed by the principal. The principal
333may give notice of the revocation to an agent who has accepted
334authority under the revoked power of attorney.
335     (2)  Except as provided in subsection (1), the execution of
336a power of attorney does not revoke a power of attorney
337previously executed by the principal.
338     Section 13.  Section 709.2111, Florida Statutes, is created
339to read:
340     709.2111  Co-agents and successor agents.-
341     (1)  A principal may designate two or more persons to act
342as co-agents. Unless the power of attorney otherwise provides,
343each co-agent may exercise its authority independently.
344     (2)  A principal may designate one or more successor agents
345to act if an agent resigns, dies, becomes incapacitated, is not
346qualified to serve, or declines to serve. Unless the power of
347attorney otherwise provides, a successor agent:
348     (a)  Has the same authority as that granted to the original
349agent; and
350     (b)  May not act until the predecessor agents have
351resigned, have died, have become incapacitated, are no longer
352qualified to serve, or have declined to serve.
353     (3)  Except as otherwise provided in the power of attorney
354and subsection (4), an agent who does not participate in or
355conceal a breach of fiduciary duty committed by another agent,
356including a predecessor agent, is not liable for the actions or
357omissions of the other agent.
358     (4)  An agent who has actual knowledge of a breach or
359imminent breach of fiduciary duty by another agent, including a
360predecessor agent, must take any action reasonably appropriate
361in the circumstances to safeguard the principal's best
362interests. If the agent in good faith believes that the
363principal is not incapacitated, giving notice to the principal
364is a sufficient action. An agent who fails to take action as
365required by this subsection is liable to the principal for the
366principal's reasonably foreseeable damages that could have been
367avoided if the agent had taken such action.
368     (5)  A successor agent does not have a duty to review the
369conduct or decisions of a predecessor agent. Except as provided
370in subsection (4), a successor agent does not have a duty to
371institute any proceeding against a predecessor agent, or to file
372any claim against a predecessor agent's estate, for any of the
373predecessor agent's actions or omissions as agent.
374     (6)  If a power of attorney requires that two or more
375persons act together as co-agents, notwithstanding the
376requirement that they act together, one or more of the agents
377may delegate to a co-agent the authority to conduct banking
378transactions as provided in s. 709.2208(1), whether the
379authority to conduct banking transactions is specifically
380enumerated or incorporated by reference to that section in the
381power of attorney.
382     Section 14.  Section 709.2112, Florida Statutes, is created
383to read:
384     709.2112  Reimbursement and compensation of agent.-
385     (1)  Unless the power of attorney otherwise provides, an
386agent is entitled to reimbursement of expenses reasonably
387incurred on behalf of the principal.
388     (2)  Unless the power of attorney otherwise provides, a
389qualified agent is entitled to compensation that is reasonable
390under the circumstances.
391     (3)  Notwithstanding any provision in the power of
392attorney, an agent may not be paid compensation unless the agent
393is a qualified agent.
394     (4)  For purposes of this section, the term "qualified
395agent" means an agent who is the spouse of the principal, an
396heir of the principal within the meaning of s. 732.103, a
397financial institution that has trust powers and a place of
398business in this state, an attorney or certified public
399accountant who is licensed in this state, or a natural person
400who is a resident of this state and who has never been an agent
401for more than three principals at the same time.
402     Section 15.  Section 709.2113, Florida Statutes, is created
403to read:
404     709.2113  Agent's acceptance of appointment.-Except as
405otherwise provided in the power of attorney, a person accepts
406appointment as an agent by exercising authority or performing
407duties as an agent or by any other assertion or conduct
408indicating acceptance. The scope of an agent's acceptance is
409limited to those aspects of the power of attorney for which the
410agent's assertions or conduct reasonably manifests acceptance.
411     Section 16.  Section 709.2114, Florida Statutes, is created
412to read:
413     709.2114  Agent's duties.-
414     (1)  An agent is a fiduciary. Notwithstanding the
415provisions in the power of attorney, an agent who has accepted
416appointment:
417     (a)  Must act only within the scope of authority granted in
418the power of attorney. In exercising that authority, the agent:
419     1.  May not act contrary to the principal's reasonable
420expectations actually known by the agent;
421     2.  Must act in good faith;
422     3.  May not act in a manner that is contrary to the
423principal's best interest, except as provided in paragraph
424(2)(d) and s. 709.2202; and
425     4.  To the extent actually known by the agent, must attempt
426to preserve the principal's estate plan if preserving the plan
427is consistent with the principal's best interest based on all
428relevant factors, including:
429     a.  The value and nature of the principal's property;
430     b.  The principal's foreseeable obligations and need for
431maintenance;
432     c.  Minimization of taxes, including income, estate,
433inheritance, generation-skipping transfer, and gift taxes;
434     d.  Eligibility for a benefit, a program, or assistance
435under a statute or rule; and
436     e.  The principal's personal history of making or joining
437in making gifts;
438     (b)  May not delegate authority to a third person except as
439provided in s. 518.112;
440     (c)  Must keep a record of all receipts, disbursements, and
441transactions made on behalf of the principal; and
442     (d)  Must create and maintain an accurate inventory each
443time the agent accesses the principal's safe-deposit box, if the
444power of attorney authorizes the agent to access the box.
445     (2)  Except as otherwise provided in the power of attorney,
446an agent who has accepted appointment shall:
447     (a)  Act loyally for the sole benefit of the principal;
448     (b)  Act so as not to create a conflict of interest that
449impairs the agent's ability to act impartially in the
450principal's best interest;
451     (c)  Act with the care, competence, and diligence
452ordinarily exercised by agents in similar circumstances; and
453     (d)  Cooperate with a person who has authority to make
454health care decisions for the principal in order to carry out
455the principal's reasonable expectations to the extent actually
456known by the agent and, otherwise, act in the principal's best
457interest.
458     (3)  An agent who acts in good faith is not liable to any
459beneficiary of the principal's estate plan for failure to
460preserve the plan.
461     (4)  If an agent is selected by the principal because of
462special skills or expertise possessed by the agent or in
463reliance on the agent's representation that the agent has
464special skills or expertise, the special skills or expertise
465must be considered in determining whether the agent has acted
466with care, competence, and diligence under the circumstances.
467     (5)  Absent a breach of duty to the principal, an agent is
468not liable if the value of the principal's property declines.
469     (6)  Except as otherwise provided in the power of attorney,
470an agent is not required to disclose receipts, disbursements,
471transactions conducted on behalf of the principal, or safe-
472deposit box inventories, unless ordered by a court or requested
473by the principal, a court-appointed guardian, another fiduciary
474acting for the principal, a governmental agency having authority
475to protect the welfare of the principal, or, upon the death of
476the principal, by the personal representative or successor in
477interest of the principal's estate. If requested, the agent must
478comply with the request within 60 days or provide a writing or
479other record substantiating why additional time is needed and
480comply with the request within an additional 60 days.
481     Section 17.  Section 709.2115, Florida Statutes, is created
482to read:
483     709.2115  Exoneration of agent.-A power of attorney may
484provide that the agent is not liable for any acts or decisions
485made by the agent in good faith and under the power of attorney,
486except to the extent the provision:
487     (1)  Relieves the agent of liability for breach of a duty
488committed dishonestly, with improper motive, or with reckless
489indifference to the purposes of the power of attorney or the
490best interest of the principal; or
491     (2)  Was inserted as a result of an abuse of a confidential
492or fiduciary relationship with the principal.
493     Section 18.  Section 709.2116, Florida Statutes, is created
494to read:
495     709.2116  Judicial relief; conflicts of interests.-
496     (1)  A court may construe or enforce a power of attorney,
497review the agent's conduct, terminate the agent's authority,
498remove the agent, and grant other appropriate relief.
499     (2)  The following persons may petition the court:
500     (a)  The principal or the agent, including any nominated
501successor agent.
502     (b)  A guardian, conservator, trustee, or other fiduciary
503acting for the principal or the principal's estate.
504     (c)  A person authorized to make health care decisions for
505the principal if the health care of the principal is affected by
506the actions of the agent.
507     (d)  Any other interested person if the person demonstrates
508to the court's satisfaction that the person is interested in the
509welfare of the principal and has a good faith belief that the
510court's intervention is necessary.
511     (e)  A governmental agency having regulatory authority to
512protect the welfare of the principal.
513     (f)  A person asked to honor the power of attorney.
514     (3)  In any proceeding commenced by filing a petition under
515this section, including, but not limited to, the unreasonable
516refusal of a third person to allow an agent to act pursuant to
517the power of attorney, and in challenges to the proper exercise
518of authority by the agent, the court shall award reasonable
519attorney's fees and costs.
520     (4)  If an agent's exercise of a power is challenged in a
521judicial proceeding brought by or on behalf of the principal on
522the grounds that the exercise of the power was affected by a
523conflict of interest, and evidence is presented that the agent
524or an affiliate of the agent had a personal interest in the
525exercise of the power, the agent or affiliate has the burden of
526proving, by clear and convincing evidence that the agent acted:
527     (a)  Solely in the interest of the principal; or
528     (b)  In good faith in the principal's best interest, and
529the conflict of interest was expressly authorized in the power
530of attorney.
531     (5)  For purposes of subsection (4):
532     (a)  A provision authorizing an agent to engage in a
533transaction affected by a conflict of interest which is inserted
534into a power of attorney as the result of the abuse of a
535fiduciary or confidential relationship with the principal by the
536agent or the agent's affiliate is invalid.
537     (b)  Affiliates of an agent include:
538     1.  The agent's spouse;
539     2.  The agent's descendants, siblings, parents, or their
540spouses;
541     3.  A corporation or other entity in which the agent, or a
542person who owns a significant interest in the agent, has an
543interest that might affect the agent's best judgment;
544     4.  A person or entity that owns a significant interest in
545the agent; or
546     5.  The agent acting in a fiduciary capacity for someone
547other than the principal.
548     Section 19.  Section 709.2117, Florida Statutes, is created
549to read:
550     709.2117  Agent's liability.-An agent who violates this
551part is liable to the principal or the principal's successors in
552interest for the amount required to:
553     (1)  Restore the value of the principal's property to what
554it would have been had the violation not occurred; and
555     (2)  Reimburse the principal or the principal's successors
556in interest for the attorney's fees and costs paid from the
557principal's funds on the agent's behalf in defense of the
558agent's actions.
559     Section 20.  Section 709.2118, Florida Statutes, is created
560to read:
561     709.2118  Agent's resignation.-Unless the power of attorney
562provides a different method for an agent's resignation, an agent
563may resign by giving notice to the principal, to the guardian if
564the principal is incapacitated and one has been appointed for
565the principal, and to any co-agent, or if none, the next
566successor agent.
567     Section 21.  Section 709.2119, Florida Statutes, is created
568to read:
569     709.2119  Acceptance of and reliance upon power of
570attorney.-
571     (1)(a)  A third person who in good faith accepts a power of
572attorney that appears to be executed in accordance with this
573part may rely upon the power of attorney and may enforce an
574authorized transaction against the principal's property as if:
575     1.  The power of attorney were genuine, valid, and still in
576effect;
577     2.  The agent's authority were genuine, valid, and still in
578effect; and
579     3.  The authority of the officer executing for or on behalf
580of a financial institution that has trust powers and acting as
581agent is genuine, valid, and still in effect.
582     (b)  For purposes of this subsection, and without limiting
583what constitutes good faith, a third person does not accept a
584power of attorney in good faith if the third person has notice
585that:
586     1.  The power of attorney is void, invalid, or terminated;
587or
588     2.  The purported agent's authority is void, invalid,
589suspended, or terminated.
590     (2)  A third person may require:
591     (a)  An agent to execute an affidavit stating where the
592principal is domiciled; that the principal is not deceased; that
593there has been no revocation, or partial or complete termination
594by adjudication of incapacity or by the occurrence of an event
595referenced in the power of attorney; that there has been no
596suspension by initiation of proceedings to determine incapacity,
597or to appoint a guardian, of the principal; and, if the affiant
598is a successor agent, the reasons for the unavailability of the
599predecessor agents, if any, at the time the authority is
600exercised.
601     (b)  An officer of a financial institution acting as agent
602to execute a separate affidavit, or include in the form of the
603affidavit, the officer's title and a statement that the officer
604has full authority to perform all acts and enter into all
605transactions authorized by the power of attorney for and on
606behalf of the financial institution in its capacity as agent. A
607written affidavit executed by the agent under this subsection
608may, but need not, be in the following form:
609
610STATE OF............
611COUNTY OF............
612
613     Before me, the undersigned authority, personally appeared
614...(attorney in fact)... ("Affiant"), who swore or affirmed
615that:
616     1.  Affiant is the attorney in fact named in the Durable
617Power of Attorney executed by ...(principal)... ("Principal") on
618...(date)....
619     2.  This Power of Attorney is currently exercisable by
620Affiant. The principal is domiciled in ...(insert name of state,
621territory, or foreign country)....
622     3.  To the best of the Affiant's knowledge after diligent
623search and inquiry:
624     a.  The Principal is not deceased;
625     b.  Affiant's authority has not been suspended by
626initiation of proceedings to determine incapacity or to appoint
627a guardian or a guardian advocate; and
628     c.  There has been no revocation, or partial or complete
629termination, of the power of attorney or of the Affiant's
630authority.
631     4.  The Affiant is acting within the scope of authority
632granted in the power of attorney.
633     5.  The Affiant is the successor to ...(insert name of
634predecessor agent)..., who has resigned, died, become
635incapacitated, is no longer qualified to serve, has declined to
636serve as agent, or is otherwise unable to act, if applicable.
637     6.  Affiant agrees not to exercise any powers granted by
638the Durable Power of Attorney if Affiant attains knowledge that
639it has been revoked, has been partially or completely terminated
640or suspended, or is no longer valid because of the death or
641adjudication of incapacity of the Principal.
642
643................
644...(Affiant)...
645
646     Sworn to (or affirmed) and subscribed before me this ....
647day of ...(month)..., ...(year)..., by ...(name of person making
648statement)...
649
650...(Signature of Notary Public-State of Florida)...
651
652...(Print, Type, or Stamp Commissioned Name of Notary Public)...
653
654Personally Known OR Produced Identification
655...(Type of Identification Produced)...
656
657     (3)  A third person who is asked to accept a power of
658attorney that appears to be executed in accordance with s.
659709.2103 may in good faith request, and rely upon, without
660further investigation:
661     (a)  A verified English translation of the power of
662attorney if the power of attorney contains, in whole or in part,
663language other than English;
664     (b)  An opinion of counsel as to any matter of law
665concerning the power of attorney if the third person making the
666request provides in a writing or other record the reason for the
667request; or
668     (c)  The affidavit described in subsection (2).
669     (4)  An English translation or an opinion of counsel
670requested under this section must be provided at the principal's
671expense unless the request is made after the time specified in
672s. 709.2120(1) for acceptance or rejection of the power of
673attorney.
674     (5)  Third persons who act in reliance upon the authority
675granted to an agent and in accordance with the instructions of
676the agent shall be held harmless by the principal from any loss
677suffered or liability incurred as a result of actions taken
678before the receipt of written notice as provided in s. 709.2121.
679A third person who acts in good faith upon any representation,
680direction, decision, or act of the agent is not liable to the
681principal or the principal's estate, beneficiaries, or joint
682owners for those acts.
683     (6)  The acts of an agent under a power of attorney are as
684valid and binding on the principal or the principal's estate as
685if the principal were alive and competent if, in connection with
686any activity pertaining to hostilities in which the United
687States is then engaged, the principal is officially listed or
688reported by a branch of the United States Armed Forces in a
689missing status as defined in 37 U.S.C. s. 551 or 5 U.S.C. s.
6905561, regardless of whether the principal is dead, alive, or
691incompetent. Homestead property held as tenants by the
692entireties may not be conveyed by a power of attorney regulated
693under this provision until 1 year after the first official
694report or listing of the principal as missing or missing in
695action. An affidavit of an officer of the Armed Forces having
696maintenance and control of the records pertaining to those
697missing or missing in action that the principal has been in that
698status for a given period is conclusive presumption of the fact.
699     Section 22.  Section 709.2120, Florida Statutes, is created
700to read:
701     709.2120  Refusal to accept power of attorney.-
702     (1)  Except as provided in subsection (2):
703     (a)  A third person must accept or reject a power of
704attorney within a reasonable time. A third person who rejects a
705power of attorney must state in writing the reason for the
706rejection.
707     (b)  Four days, excluding Saturdays, Sundays, and legal
708holidays, are presumed to be a reasonable time for a financial
709institution to accept or reject a power of attorney with respect
710to:
711     1.  A banking transaction, if the power of attorney
712expressly contains authority to conduct banking transactions
713pursuant to s. 709.2208(1); or
714     2.  A security transaction, if the power of attorney
715expressly contains authority to conduct security transactions
716pursuant to s. 709.2208(2).
717     (c)  A third person may not require an additional or
718different form of power of attorney for authority granted in the
719power of attorney presented.
720     (2)  A third person is not required to accept a power of
721attorney if:
722     (a)  The third person is not otherwise required to engage
723in a transaction with the principal in the same circumstances;
724     (b)  The third person has knowledge of the termination or
725suspension of the agent's authority or of the power of attorney
726before exercising the power;
727     (c)  A timely request by the third person for an affidavit,
728English translation, or opinion of counsel under s. 709.2119(4)
729is refused by the agent;
730     (d)  Except as provided in paragraph (b), the third person
731believes in good faith that the power is not valid or that the
732agent does not have authority to perform the act requested; or
733     (e)  The third person makes, or has knowledge that another
734person has made, a report to the local adult protective services
735office stating a good faith belief that the principal may be
736subject to physical or financial abuse, neglect, exploitation,
737or abandonment by the agent or a person acting for or with the
738agent.
739     (3)  A third person who, in violation of this section,
740refuses to accept a power of attorney is subject to:
741     (a)  A court order mandating acceptance of the power of
742attorney; and
743     (b)  Liability for damages, including reasonable attorney's
744fees and costs, incurred in any action or proceeding that
745confirms, for the purpose tendered, the validity of the power of
746attorney or mandates acceptance of the power of attorney.
747     Section 23.  Section 709.2121, Florida Statutes, is created
748to read:
749     709.2121  Notice.-
750     (1)  A notice, including a notice of revocation, notice of
751partial or complete termination by adjudication of incapacity or
752by the occurrence of an event referenced in the power of
753attorney, notice of death of the principal, notice of suspension
754by initiation of proceedings to determine incapacity or to
755appoint a guardian, or other notice, is not effective until
756written notice is provided to the agent or any third persons
757relying upon a power of attorney.
758     (2)  Notice must be in writing and must be accomplished in
759a manner reasonably suitable under the circumstances and likely
760to result in receipt of the notice or document. Permissible
761methods of notice or for sending a document include first-class
762mail, personal delivery, delivery to the person's last known
763place of residence or place of business, or a properly directed
764facsimile or other electronic message.
765     (3)  Notice to a financial institution must contain the
766name, address, and the last four digits of the principal's
767taxpayer identification number and be directed to an officer or
768a manager of the financial institution in this state.
769     (4)  Notice is effective when given, except that notice
770upon a financial institution, brokerage company, or title
771insurance company is not effective until 5 days, excluding
772Saturdays, Sundays, and legal holidays, after it is received.
773     Section 24.  Section 709.2201, Florida Statutes, is created
774to read:
775     709.2201  Authority of agent.-
776     (1)  Except as provided in this section or other applicable
777law, an agent may only exercise authority specifically granted
778to the agent in the power of attorney and any authority
779reasonably necessary to give effect to that express grant of
780specific authority. General provisions in a power of attorney
781which do not identify the specific authority granted, such as
782provisions purporting to give the agent authority to do all acts
783that the principal can do, is not an express grant of specific
784authority and does not grant any authority to the agent. Court
785approval is not required for any action of the agent in
786furtherance of an express grant of specific authority.
787     (2)  As a confirmation of the law in effect in this state
788when this part became effective, such authorization may include,
789without limitation, authority to:
790     (a)  Execute stock powers or similar documents on behalf of
791the principal and delegate to a transfer agent or similar person
792the authority to register any stocks, bonds, or other securities
793into or out of the principal's or nominee's name.
794     (b)  Convey or mortgage homestead property. However, if the
795principal is married, the agent may not mortgage or convey
796homestead property without joinder of the principal's spouse or
797the spouse's guardian. Joinder by a spouse may be accomplished
798by the exercise of authority in a power of attorney executed by
799the joining spouse, and either spouse may appoint the other as
800his or her agent.
801     (c)  If such authority is specifically granted in a durable
802power of attorney, make all health care decisions on behalf of
803the principal, including, but not limited to, those set forth in
804chapter 765.
805     (3)  Notwithstanding the provisions of this section, an
806agent may not:
807     (a)  Perform duties under a contract that requires the
808exercise of personal services of the principal;
809     (b)  Make any affidavit as to the personal knowledge of the
810principal;
811     (c)  Vote in any public election on behalf of the
812principal;
813     (d)  Execute or revoke any will or codicil for the
814principal; or
815     (e)  Exercise powers and authority granted to the principal
816as trustee or as court-appointed fiduciary.
817     (4)  Subject to s. 709.2202, if the subjects over which
818authority is granted in a power of attorney are similar or
819overlap, the broadest authority controls.
820     (5)  Authority granted in a power of attorney is
821exercisable with respect to property that the principal has when
822the power of attorney is executed and to property that the
823principal acquires later, whether or not the property is located
824in this state and whether or not the authority is exercised or
825the power of attorney is executed in this state.
826     (6)  An act performed by an agent pursuant to a power of
827attorney has the same effect and inures to the benefit of and
828binds the principal and the principal's successors in interest
829as if the principal had performed the act.
830     Section 25.  Section 709.2202, Florida Statutes, is created
831to read:
832     709.2202  Authority that requires separate signed
833enumeration.-
834     (1)  Notwithstanding s. 709.2201, an agent may exercise the
835following authority only if the principal signed or initialed
836next to each specific enumeration of the authority, the exercise
837of the authority is consistent with the agent's duties under s.
838709.2114, and the exercise is not otherwise prohibited by
839another agreement or instrument:
840     (a)  Create an inter vivos trust;
841     (b)  With respect to a trust created by or on behalf of the
842principal, amend, modify, revoke, or terminate the trust, but
843only if the trust instrument explicitly provides for amendment,
844modification, revocation, or termination by the settlor's agent;
845     (c)  Make a gift, subject to subsection (3);
846     (d)  Create or change rights of survivorship;
847     (e)  Create or change a beneficiary designation;
848     (f)  Waive the principal's right to be a beneficiary of a
849joint and survivor annuity, including a survivor benefit under a
850retirement plan; or
851     (g)  Disclaim property and powers of appointment.
852     (2)  Notwithstanding a grant of authority to do an act
853described in subsection (1), unless the power of attorney
854otherwise provides, an agent who is not an ancestor, spouse, or
855descendant of the principal may not exercise authority to create
856in the agent, or in an individual to whom the agent owes a legal
857obligation of support, an interest in the principal's property,
858whether by gift, right of survivorship, beneficiary designation,
859disclaimer, or otherwise.
860     (3)  Unless the power of attorney otherwise provides, a
861provision in a power of attorney granting general authority with
862respect to gifts authorizes the agent to only:
863     (a)  Make outright to, or for the benefit of, a person a
864gift of any of the principal's property, including by the
865exercise of a presently exercisable general power of appointment
866held by the principal, in an amount per donee not to exceed the
867annual dollar limits of the federal gift tax exclusion under 26
868U.S.C. s. 2503(b), as amended, without regard to whether the
869federal gift tax exclusion applies to the gift, or if the
870principal's spouse agrees to consent to a split gift pursuant to
87126 U.S.C. s. 2513, as amended, in an amount per donee not to
872exceed twice the annual federal gift tax exclusion limit; and
873     (b)  Consent, pursuant to 26 U.S.C. s. 2513, as amended, to
874the splitting of a gift made by the principal's spouse in an
875amount per donee not to exceed the aggregate annual gift tax
876exclusions for both spouses.
877     (4)  Notwithstanding subsection (1), if a power of attorney
878is otherwise sufficient to grant an agent authority to conduct
879banking transactions, as provided in s. 709.2208(1), conduct
880investment transactions as provided in s. 709.2208(2), or
881otherwise make additions to or withdrawals from an account of
882the principal, making a deposit to or withdrawal from an
883insurance policy, retirement account, individual retirement
884account, benefit plan, bank account, or any other account held
885jointly or otherwise held in survivorship or payable on death,
886is not considered to be a change to the survivorship feature or
887beneficiary designation, and no further specific authority is
888required for the agent to exercise such authority. A bank or
889other financial institution does not have a duty to inquire as
890to the appropriateness of the agent's exercise of that authority
891and is not liable to the principal or any other person for
892actions taken in good faith reliance on the appropriateness of
893the agent's actions. This subsection does not eliminate the
894agent's fiduciary duties to the principal with respect to any
895exercise of the power of attorney.
896     (5)  This section does not apply to a power of attorney
897executed before October 1, 2011.
898     Section 26.  Section 709.2208, Florida Statutes, is created
899to read:
900     709.2208  Banks and other financial institutions.-
901     (1)  A power of attorney that includes the statement that
902the agent has "authority to conduct banking transactions as
903provided in section 709.2208(1), Florida Statutes" grants
904general authority to the agent to engage in the following
905transactions with financial institutions without additional
906specific enumeration in the power of attorney:
907     (a)  Establish, continue, modify, or terminate an account
908or other banking arrangement with a financial institution.
909     (b)  Contract for services available from a financial
910institution, including renting a safe-deposit box or space in a
911vault.
912     (c)  Withdraw, by check, order, electronic funds transfer,
913or otherwise, money or property of the principal deposited with
914or left in the custody of a financial institution.
915     (d)  Receive statements of account, vouchers, notices, and
916similar documents from a financial institution and act with
917respect to them.
918     (e)  Purchase cashier's checks, official checks, counter
919checks, bank drafts, money orders, and similar instruments.
920     (f)  Endorse and negotiate checks, cashier's checks,
921official checks, drafts, and other negotiable paper of the
922principal or payable to the principal or the principal's order,
923transfer money, receive the cash or other proceeds of those
924transactions, and accept a draft drawn by a person upon the
925principal and pay it when due.
926     (g)  Apply for, receive, and use debit cards, electronic
927transaction authorizations, and traveler's checks from a
928financial institution.
929     (h)  Use, charge, or draw upon any line of credit, credit
930card, or other credit established by the principal with a
931financial institution.
932     (i)  Consent to an extension of the time of payment with
933respect to commercial paper or a financial transaction with a
934financial institution.
935     (2)  A power of attorney that specifically includes the
936statement that the agent has "authority to conduct investment
937transactions as provided in section 709.2208(2), Florida
938Statutes" grants general authority to the agent with respect to
939securities held by financial institutions to take the following
940actions without additional specific enumeration in the power of
941attorney:
942     (a)  Buy, sell, and exchange investment instruments.
943     (b)  Establish, continue, modify, or terminate an account
944with respect to investment instruments.
945     (c)  Pledge investment instruments as security to borrow,
946pay, renew, or extend the time of payment of a debt of the
947principal.
948     (d)  Receive certificates and other evidences of ownership
949with respect to investment instruments.
950     (e)  Exercise voting rights with respect to investment
951instruments in person or by proxy, enter into voting trusts, and
952consent to limitations on the right to vote.
953     (f)  Sell commodity futures contracts and call and put
954options on stocks and stock indexes.
955
956For purposes of this subsection, the term "investment
957instruments" means stocks, bonds, mutual funds, and all other
958types of securities and financial instruments, whether held
959directly, indirectly, or in any other manner, including shares
960or interests in a private investment fund, including, but not
961limited to, a private investment fund organized as a limited
962partnership, a limited liability company, a statutory or common
963law business trust, a statutory trust, or a real estate
964investment trust, joint venture, or any other general or limited
965partnership; derivatives or other interests of any nature in
966securities such as options, options on futures, and variable
967forward contracts; mutual funds; common trust funds; money
968market funds; hedge funds; private equity or venture capital
969funds; insurance contracts; and other entities or vehicles
970investing in securities or interests in securities whether
971registered or otherwise, except commodity futures contracts and
972call and put options on stocks and stock indexes.
973     Section 27.  Section 709.2301, Florida Statutes, is created
974to read:
975     709.2301  Principles of law and equity.-The common law of
976agency and principles of equity supplement this part, except as
977modified by this part or other state law.
978     Section 28.  Section 709.2302, Florida Statutes, is created
979to read:
980     709.2302  Laws applicable to financial institutions and
981entities.-This part does not supersede any other law applicable
982to financial institutions or other entities, and that law
983controls if inconsistent with this part.
984     Section 29.  Section 709.2303, Florida Statutes, is created
985to read:
986     709.2303  Remedies under other law.-The remedies under this
987part are not exclusive and do not abrogate any right or remedy
988under any other law other than this part.
989     Section 30.  Section 709.2401, Florida Statutes, is created
990to read:
991     709.2401  Relation to electronic signatures in federal
992law.-This part modifies, limits, and supersedes the federal
993Electronic Signatures in Global and National Commerce Act, 15
994U.S.C. s. 7001 et seq., but does not modify, limit, or supersede
995s. 101(c) of that act, or authorize electronic delivery of any
996of the notices described in s. 103(b) of that act.
997     Section 31.  Section 709.2402, Florida Statutes, is created
998to read:
999     709.2402  Effect on existing powers of attorney.-Except as
1000otherwise provided in this part:
1001     (1)  This part applies to a power of attorney created
1002before, on, or after October 1, 2011, and to acts of the agent
1003occurring on or after that date.
1004     (2)  An act of the agent occurring before October 1, 2011,
1005is not affected by this part.
1006     Section 32.  Subsection (5) of section 736.0602, Florida
1007Statutes, is amended to read:
1008     736.0602  Revocation or amendment of revocable trust.-
1009     (5)  A settlor's powers with respect to revocation,
1010amendment, or distribution of trust property may be exercised by
1011an agent under a power of attorney only as authorized by s.
1012709.2202 709.08.
1013     Section 33.  Sections 709.01, 709.015, 709.08, and 709.11
1014Florida Statutes, are repealed.
1015     Section 34.  This act shall take effect October 1, 2011.


CODING: Words stricken are deletions; words underlined are additions.