Florida Senate - 2013                          SENATOR AMENDMENT
       Bill No. SB 832
       
       
       
       
       
       
                                Barcode 640162                          
       
                              LEGISLATIVE ACTION                        
                    Senate             .             House              
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                 Floor: WD/2R          .                                
             04/16/2013 09:33 AM       .                                
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       Senator Joyner moved the following:
       
    1         Senate Amendment (with title amendment)
    2  
    3         Delete everything after the enacting clause
    4  and insert:
    5         Section 1. Present subsections (2) through (12) of section
    6  709.2102, Florida Statutes, are renumbered as subsections (3)
    7  through (13), respectively, present subsection (13) of that
    8  section is renumbered as subsection (15), new subsections (2)
    9  and (14) are added to that section, and present subsection (12)
   10  of that section is amended, to read:
   11         709.2102 Definitions.—As used in this part, the term:
   12         (2) “Broker-dealer” means a broker-dealer registered with
   13  the United States Securities and Exchange Commission or the
   14  Commodity Futures Trading Commission if the broker-dealer is
   15  acting in that capacity.
   16         (13)(12) “Sign” means having present intent to authenticate
   17  or adopt a record to:
   18         (a) Execute by signature or mark or adopt a tangible
   19  symbol; or
   20         (b) Attach to, or logically associate with the record an
   21  electronic sound, symbol, or process.
   22         (14) “Another state” means a state of the United States,
   23  the District of Columbia, Puerto Rico, the United States Virgin
   24  Islands, or any territory or insular possession subject to the
   25  jurisdiction of the United States.
   26         Section 2. Section 709.2103, Florida Statutes, is amended
   27  to read:
   28         709.2103 Applicability.—This part applies to all powers of
   29  attorney except:
   30         (1) A proxy or other delegation to exercise voting rights
   31  or management rights with respect to an entity;
   32         (2) A power created on a form prescribed by a government or
   33  governmental subdivision, agency, or instrumentality for a
   34  governmental purpose;
   35         (3) A power to the extent it is coupled with an interest in
   36  the subject of the power, including a power given to or for the
   37  benefit of a creditor in connection with a credit transaction;
   38  and
   39         (4) A power created by a person other than an individual;
   40         (5) A power given to a transfer agent to facilitate a
   41  specific transfer or disposition of one or more identified
   42  stocks, bonds, or other financial instruments;
   43         (6) A power authorizing a financial institution or broker
   44  dealer, or an employee of the financial institution or broker
   45  dealer, to act as agent for the account owner in executing
   46  trades or transfers of cash, securities, commodities, or other
   47  financial assets in the regular course of business; and
   48         (7) A delegation of powers by a trustee in accordance with
   49  s. 736.0807.
   50         Section 3. Subsection (3) is added to section 709.2105,
   51  Florida Statutes, to read:
   52         709.2105 Qualifications of agent; execution of power of
   53  attorney.—
   54         (3) If the principal is physically unable to sign the power
   55  of attorney, the notary public before whom the principal’s oath
   56  or acknowledgment is made may sign the principal’s name on the
   57  power of attorney pursuant to s. 117.05(14).
   58         Section 4. Subsections (3) and (5) of section 709.2106,
   59  Florida Statutes, are amended, and subsection (6) is added to
   60  that section, to read:
   61         709.2106 Validity of power of attorney.—
   62         (3) A power of attorney executed in another state which
   63  does not comply with the execution requirements of this part is
   64  valid in this state if, when the power of attorney was executed,
   65  the power of attorney and its execution complied with the law of
   66  the state of execution. A third person who is requested to
   67  accept a power of attorney that is valid in this state solely
   68  because of this subsection may in good faith request, and rely
   69  upon, without further investigation, an opinion of counsel as to
   70  any matter of law concerning the power of attorney, including
   71  the due execution and validity of the power of attorney. An
   72  opinion of counsel requested under this subsection must be
   73  provided at the principal’s expense. A third person may reject
   74  accept a power of attorney that is valid in this state solely
   75  because of this subsection if the agent does not provide the
   76  requested opinion of counsel, and in such case, a third person
   77  has no liability for rejecting refusing to accept the power of
   78  attorney. This subsection does not affect any other rights of a
   79  third person who is requested to accept the power of attorney
   80  under this part, or any other provisions of applicable law.
   81         (5) Except as otherwise provided in the power of attorney,
   82  a photocopy or electronically transmitted copy of an original
   83  power of attorney has the same effect as the original.
   84  Notwithstanding this subsection, an original power of attorney
   85  that is relied upon to affect the title to real property may be
   86  required for recording in the official records.
   87         (6) An original of a properly executed power of attorney
   88  may be presented to the clerk of the circuit court for recording
   89  in the official records as provided under s. 28.222 upon payment
   90  of the service charge as provided under s. 28.24.
   91         Section 5. Paragraph (b) of subsection (1) of section
   92  709.2114, Florida Statutes, is amended to read:
   93         709.2114 Agent’s duties.—
   94         (1) An agent is a fiduciary. Notwithstanding the provisions
   95  in the power of attorney, an agent who has accepted appointment:
   96         (b) May not delegate authority to a third person except as
   97  authorized under provided in s. 518.112 or this part or by
   98  executing a power of attorney on a form prescribed by a
   99  government or governmental subdivision, agency, or
  100  instrumentality for a governmental purpose;
  101         Section 6. Subsection (3) of section 709.2116, Florida
  102  Statutes, is amended to read:
  103         709.2116 Judicial relief; conflicts of interests.—
  104         (3) In any proceeding commenced by filing a petition under
  105  this section, including, but not limited to, the unreasonable
  106  refusal of a third person to allow an agent to act pursuant to
  107  the power of attorney, and in challenges to the proper exercise
  108  of authority by the agent, the court shall award reasonable
  109  attorney attorney’s fees and costs as in chancery actions.
  110         Section 7. Subsections (2) and (3) of section 709.2119,
  111  Florida Statutes, are amended to read:
  112         709.2119 Acceptance of and reliance upon power of
  113  attorney.—
  114         (2) A third person may require:
  115         (a) An agent to execute an affidavit stating where the
  116  principal is domiciled; that the principal is not deceased; that
  117  there has been no revocation, or partial or complete termination
  118  by adjudication of incapacity or by the occurrence of an event
  119  referenced in the power of attorney; that there has been no
  120  suspension by initiation of proceedings to determine incapacity,
  121  or to appoint a guardian, of the principal; that the agent’s
  122  authority has not been terminated by the filing of an action for
  123  dissolution or annulment of marriage or legal separation of the
  124  agent and principal; and, if the affiant is a successor agent,
  125  the reasons for the unavailability of the predecessor agents, if
  126  any, at the time the authority is exercised.
  127         (b) An officer of a financial institution acting as agent
  128  to execute a separate affidavit, or include in the form of the
  129  affidavit, the officer’s title and a statement that the officer
  130  has full authority to perform all acts and enter into all
  131  transactions authorized by the power of attorney for and on
  132  behalf of the financial institution in its capacity as agent.
  133         (c) A written affidavit executed by the agent under this
  134  subsection may, but need not, be in the following form:
  135  
  136  STATE OF............
  137  COUNTY OF............
  138  
  139         Before me, the undersigned authority, personally appeared
  140  ...(agent) (attorney in fact)... (“Affiant”), who swore or
  141  affirmed that:
  142         1. Affiant is the agent attorney in fact named in the
  143  Durable Power of Attorney executed by ...(principal)...
  144  (“Principal”) on ...(date)....
  145         2. This Power of Attorney is currently exercisable by
  146  Affiant. The principal is domiciled in ...(insert name of state,
  147  territory, or foreign country)....
  148         3. To the best of Affiant’s knowledge after diligent search
  149  and inquiry:
  150         a. The Principal is not deceased;
  151         b. Affiant’s authority has not been suspended by initiation
  152  of proceedings to determine incapacity or to appoint a guardian
  153  or a guardian advocate;
  154         c. Affiant’s authority has not been terminated by the
  155  filing of an action for dissolution or annulment of Affiant’s
  156  marriage to the principal, or their legal separation; and
  157         d.c. There has been no revocation, or partial or complete
  158  termination, of the power of attorney or of Affiant’s authority.
  159         4. Affiant is acting within the scope of authority granted
  160  in the Power of Attorney.
  161         5. Affiant is the successor to ...(insert name of
  162  predecessor agent)..., who has resigned, died, become
  163  incapacitated, is no longer qualified to serve, has declined to
  164  serve as agent, or is otherwise unable to act, if applicable.
  165         6. Affiant agrees not to exercise any powers granted by the
  166  Durable Power of Attorney if Affiant attains knowledge that the
  167  Power of Attorney it has been revoked, has been partially or
  168  completely terminated or suspended, or is no longer valid
  169  because of the death or adjudication of incapacity of the
  170  Principal.
  171  ....
  172  ...(Affiant)...
  173         Sworn to (or affirmed) and subscribed before me this ....
  174  day of ...(month)..., ...(year)..., by ... (name of person
  175  making statement)...
  176  ...(Signature of Notary Public-State of Florida)...
  177  
  178  ...(Print, Type, or Stamp Commissioned Name of Notary Public)...
  179  
  180  Personally Known OR Produced Identification
  181  ...(Type of Identification Produced)...
  182  
  183         (3) A third person who is asked to accept a power of
  184  attorney that appears to be executed in accordance with s.
  185  709.2105 709.2103 may in good faith request, and rely upon,
  186  without further investigation:
  187         (a) A certified verified English translation of the power
  188  of attorney if the power of attorney contains, in whole or in
  189  part, language other than English;
  190         (b) An opinion of counsel as to any matter of law
  191  concerning the power of attorney if the third person making the
  192  request provides in a writing or other record the reason for the
  193  request; or
  194         (c) The affidavit described in subsection (2).
  195         Section 8. Section 709.2120, Florida Statutes, is amended
  196  to read:
  197         709.2120 Rejecting Refusal to accept power of attorney.—
  198         (1) Except as provided in subsection (2):
  199         (1)(a) A third person must accept or reject a power of
  200  attorney within a reasonable time. A third person who rejects a
  201  power of attorney must state in writing the reason for the
  202  rejection.
  203         (b) Four days, excluding Saturdays, Sundays, and legal
  204  holidays, are presumed to be a reasonable time for a financial
  205  institution or broker-dealer to accept or reject a power of
  206  attorney with respect to:
  207         (a)1. A banking transaction, if the power of attorney
  208  expressly contains authority to conduct banking transactions
  209  pursuant to s. 709.2208(1); or
  210         (b)2.An investment A security transaction, if the power of
  211  attorney expressly contains authority to conduct investment
  212  security transactions pursuant to s. 709.2208(2).
  213         (2)(c) A third person may not require an additional or
  214  different form of power of attorney for authority granted in the
  215  power of attorney presented.
  216         (3) A third person who rejects a power of attorney for any
  217  reason other than as provided in paragraph (4)(a) must state in
  218  writing the reason for the rejection.
  219         (4)(2) A third person is not required to accept a power of
  220  attorney if:
  221         (a) The third person is not otherwise required to engage in
  222  a transaction with the principal in the same circumstances;
  223         (b) The third person has knowledge of the termination or
  224  suspension of the agent’s authority or of the power of attorney
  225  before exercising the power;
  226         (c) A timely request by the third person for an affidavit,
  227  English translation, or opinion of counsel under s. 709.2119(4)
  228  is refused by the agent;
  229         (d) Except as provided in paragraph (b), the third person
  230  believes in good faith that the power is not valid or that the
  231  agent does not have authority to perform the act requested; or
  232         (e) The third person makes, or has knowledge that another
  233  person has made, a report to the local adult protective services
  234  office stating a good faith belief that the principal may be
  235  subject to physical or financial abuse, neglect, exploitation,
  236  or abandonment by the agent or a person acting for or with the
  237  agent.
  238         (5)(3) A third person who, in violation of this section,
  239  rejects refuses to accept a power of attorney is subject to:
  240         (a) A court order mandating acceptance of the power of
  241  attorney; and
  242         (b) Liability for damages, including reasonable attorney
  243  attorney’s fees and costs, incurred in any action or proceeding
  244  that confirms, for the purpose tendered, the validity of the
  245  power of attorney or mandates acceptance of the power of
  246  attorney.
  247         Section 9. Subsection (3) of section 709.2121, Florida
  248  Statutes, is amended to read:
  249         709.2121 Notice.—
  250         (3) Notice to a financial institution or broker-dealer must
  251  contain the principal’s name and, address, and the last four
  252  digits of the principal’s taxpayer identification number and be
  253  directed to an officer or a manager of the financial institution
  254  or broker-dealer in this state.
  255         Section 10. Section 709.2202, Florida Statutes, is amended
  256  to read:
  257         709.2202 Authority that requires separate signed
  258  enumeration.—
  259         (1) Notwithstanding s. 709.2201, an agent may exercise the
  260  following authority only if the principal signed or initialed
  261  next to each specific enumeration of the authority, the exercise
  262  of the authority is consistent with the agent’s duties under s.
  263  709.2114, and the exercise is not otherwise prohibited by
  264  another agreement or instrument:
  265         (a) Create an inter vivos trust;
  266         (b) With respect to a trust created by or on behalf of the
  267  principal, amend, modify, revoke, or terminate the trust, but
  268  only if the trust instrument explicitly provides for amendment,
  269  modification, revocation, or termination by the settlor’s agent;
  270         (c) Make a gift, subject to subsection (4) (3);
  271         (d) Create or change rights of survivorship;
  272         (e) Create or change a beneficiary designation;
  273         (f) Waive the principal’s right to be a beneficiary of a
  274  joint and survivor annuity, including a survivor benefit under a
  275  retirement plan; or
  276         (g) Disclaim property and powers of appointment.
  277         (2) In addition to signing the power of attorney on behalf
  278  of the principal pursuant to s. 709.2105(3), if the principal is
  279  physically unable to sign or initial next to any enumerated
  280  authority for which subsection (1) requires the principal to
  281  sign or initial, the notary public before whom the principal’s
  282  oath or acknowledgment is made may sign the principal’s name or
  283  initials if:
  284         (a) The principal directs the notary to sign the
  285  principal’s name or initials on the power of attorney next to
  286  any enumerated authority for which subsection (1) requires the
  287  principal to sign or initial;
  288         (b) The signing or initialling by the notary is done in the
  289  presence of the principal and witnessed by two disinterested
  290  subscribing witnesses; and
  291         (c) The notary writes the statement “Signature or initials
  292  affixed by the notary pursuant to s. 709.2202(2), Florida
  293  Statutes,” below each signature or initial that the notary
  294  writes on behalf of the principal.
  295  
  296  Only one notarial certificate in substantially the same form as
  297  those described in s. 117.05(14), which states the circumstances
  298  of all signatures and initials written by the notary public, is
  299  required to be completed by the notary public.
  300         (3)(2) Notwithstanding a grant of authority to do an act
  301  described in subsection (1), unless the power of attorney
  302  otherwise provides, an agent who is not an ancestor, spouse, or
  303  descendant of the principal may not exercise authority to create
  304  in the agent, or in an individual to whom the agent owes a legal
  305  obligation of support, an interest in the principal’s property,
  306  whether by gift, right of survivorship, beneficiary designation,
  307  disclaimer, or otherwise.
  308         (4)(3) Unless the power of attorney otherwise provides, a
  309  provision in a power of attorney granting general authority with
  310  respect to gifts authorizes the agent to only:
  311         (a) Make outright to, or for the benefit of, a person a
  312  gift of any of the principal’s property, including by the
  313  exercise of a presently exercisable general power of appointment
  314  held by the principal, in an amount per donee per calendar year
  315  not to exceed the annual dollar limits of the federal gift tax
  316  exclusion under 26 U.S.C. s. 2503(b), as amended, without regard
  317  to whether the federal gift tax exclusion applies to the gift,
  318  or if the principal’s spouse agrees to consent to a split gift
  319  pursuant to 26 U.S.C. s. 2513, as amended, in an amount per
  320  donee per calendar year not to exceed twice the annual federal
  321  gift tax exclusion limit; and
  322         (b) Consent, pursuant to 26 U.S.C. s. 2513, as amended, to
  323  the splitting of a gift made by the principal’s spouse in an
  324  amount per donee per calendar year not to exceed the aggregate
  325  annual gift tax exclusions for both spouses.
  326         (5)(4) Notwithstanding subsection (1), if a power of
  327  attorney is otherwise sufficient to grant an agent authority to
  328  conduct banking transactions, as provided in s. 709.2208(1),
  329  conduct investment transactions as provided in s. 709.2208(2),
  330  or otherwise make additions to or withdrawals from an account of
  331  the principal, making a deposit to or withdrawal from an
  332  insurance policy, retirement account, individual retirement
  333  account, benefit plan, bank account, or any other account held
  334  jointly or otherwise held in survivorship or payable on death,
  335  is not considered to be a change to the survivorship feature or
  336  beneficiary designation, and no further specific authority is
  337  required for the agent to exercise such authority. A bank or
  338  other financial institution or broker-dealer does not have a
  339  duty to inquire as to the appropriateness of the agent’s
  340  exercise of that authority and is not liable to the principal or
  341  any other person for actions taken in good faith reliance on the
  342  appropriateness of the agent’s actions. This subsection does not
  343  eliminate the agent’s fiduciary duties to the principal with
  344  respect to any exercise of the power of attorney.
  345         (6)(5) This section does not apply to a power of attorney
  346  executed before October 1, 2011.
  347         Section 11. Subsection (2) of section 709.2208, Florida
  348  Statutes, is amended to read:
  349         709.2208 Banks and other financial institutions.—
  350         (2) A power of attorney that specifically includes the
  351  statement that the agent has “authority to conduct investment
  352  transactions as provided in section 709.2208(2), Florida
  353  Statutes” grants general authority to the agent with respect to
  354  securities held by financial institutions or broker-dealers to
  355  take the following actions without additional specific
  356  enumeration in the power of attorney:
  357         (a) Buy, sell, and exchange investment instruments.
  358         (b) Establish, continue, modify, or terminate an account
  359  with respect to investment instruments.
  360         (c) Pledge investment instruments as security to borrow,
  361  pay, renew, or extend the time of payment of a debt of the
  362  principal.
  363         (d) Receive certificates and other evidences of ownership
  364  with respect to investment instruments.
  365         (e) Exercise voting rights with respect to investment
  366  instruments in person or by proxy, enter into voting trusts, and
  367  consent to limitations on the right to vote.
  368         (f) Sell commodity futures contracts and call and put
  369  options on stocks and stock indexes.
  370  
  371  For purposes of this subsection, the term “investment
  372  instruments” means stocks, bonds, mutual funds, and all other
  373  types of securities and financial instruments, whether held
  374  directly, indirectly, or in any other manner, including shares
  375  or interests in a private investment fund, including, but not
  376  limited to, a private investment fund organized as a limited
  377  partnership, a limited liability company, a statutory or common
  378  law business trust, a statutory trust, or a real estate
  379  investment trust, joint venture, or any other general or limited
  380  partnership; derivatives or other interests of any nature in
  381  securities such as options, options on futures, and variable
  382  forward contracts; mutual funds; common trust funds; money
  383  market funds; hedge funds; private equity or venture capital
  384  funds; insurance contracts; and other entities or vehicles
  385  investing in securities or interests in securities whether
  386  registered or otherwise, except commodity futures contracts and
  387  call and put options on stocks and stock indexes.
  388         Section 12. This act shall take effect upon becoming a law.
  389  
  390  ================= T I T L E  A M E N D M E N T ================
  391         And the title is amended as follows:
  392         Delete everything before the enacting clause
  393  and insert:
  394                        A bill to be entitled                      
  395         An act relating to powers of attorney; amending s.
  396         709.2102, F.S.; revising and providing definitions;
  397         amending s. 709.2103, F.S.; providing additional
  398         exceptions to the applicability of specified power of
  399         attorney provisions; amending s. 709.2105, F.S.;
  400         authorizing a notary public to sign a principal’s name
  401         on a power of attorney under certain circumstances;
  402         amending s. 709.2106, F.S.; clarifying and revising
  403         language; providing that an original power of attorney
  404         may be required under certain circumstances; providing
  405         that an original power of attorney may be recorded in
  406         the official records for a fee; amending s. 709.2114,
  407         F.S.; adding exceptions to a provision that prohibits
  408         an agent who has accepted appointment from delegating
  409         authority to a third person; amending s. 709.2116,
  410         F.S.; providing for the award of attorney fees and
  411         costs as in chancery actions; amending s. 709.2119,
  412         F.S.; authorizing a third person to require an agent
  413         to execute an affidavit stating that the agent’s
  414         authority was not terminated because of certain
  415         circumstances; revising a form for affidavits;
  416         revising a cross-reference; revising terminology;
  417         amending s. 709.2120, F.S.; conforming provisions to
  418         changes made by the act; requiring a third person who
  419         rejects a power of attorney for certain reasons to
  420         state the reason for the rejection in writing;
  421         amending s. 709.2121, F.S.; providing for notice to a
  422         broker-dealer; amending s. 709.2202, F.S.; authorizing
  423         a notary to sign the principal’s name to documents,
  424         other than the power of attorney, under certain
  425         circumstances; clarifying that certain gift amounts
  426         are based on the calendar year; specifying that a
  427         broker-dealer does not have a duty to inquire into
  428         certain actions by an agent and is not liable for
  429         actions taken in good faith reliance on an agent’s
  430         actions; amending s. 709.2208, F.S.; providing that an
  431         agent acquires general authority regarding securities
  432         held by broker-dealers under certain circumstances;
  433         providing an effective date.