Florida Senate - 2015                              CS for SB 362
       
       
        
       By the Committee on Judiciary; and Senator Lee
       
       
       
       
       
       590-01675-15                                           2015362c1
    1                        A bill to be entitled                      
    2         An act relating to powers of attorney; amending s.
    3         709.2105, F.S.; revising the qualifications of an
    4         agent in the execution of power of attorney to include
    5         certain not-for-profit corporations; providing an
    6         effective date.
    7          
    8  Be It Enacted by the Legislature of the State of Florida:
    9  
   10         Section 1. Section 709.2105, Florida Statutes, is amended
   11  to read:
   12         709.2105 Qualifications of agent; execution of power of
   13  attorney.—
   14         (1) The agent must be one of the following:
   15         (a) A natural person who is 18 years of age or older. or
   16         (b) A financial institution that has trust powers and, has
   17  a place of business in this state, and is authorized to conduct
   18  trust business in this state.
   19         (c) A not-for-profit corporation that:
   20         1.Is organized for charitable or religious purposes in
   21  this state;
   22         2.Was qualified as a court-appointed guardian before
   23  January 1, 1996; and
   24         3.Is a tax-exempt organization under s. 501(c)(3) of the
   25  Internal Revenue Code. However, this subparagraph applies only
   26  to a corporation that acts through an individual listed in the
   27  records of the Division of Corporations of the Department of
   28  State as a current officer of the corporation and only upon the
   29  occurrence of any of the following events:
   30         a. Posting and maintenance by the corporation of a blanket
   31  fiduciary bond of at least $250,000 with the clerk of the
   32  circuit court in the county in which the corporation’s primary
   33  place of business is located. The corporation shall provide
   34  proof of the fiduciary bond to the clerk of each additional
   35  circuit court in which the corporation is serving as agent for a
   36  resident of that circuit. The bond must cover all principals for
   37  whom the corporation has been appointed as an agent at any given
   38  time. The liability of the provider of the bond is limited to
   39  the face value of the bond, regardless of the number of
   40  principals for whom the corporation is acting as an agent. The
   41  terms of the bond must cover the acts or omissions of each agent
   42  or employee of the corporation who has direct contact with the
   43  principal or access to the principal’s assets. The bond must be
   44  payable to the Governor and his or her successors in office and
   45  be conditioned on the faithful performance of all duties of an
   46  agent under this chapter.
   47         b. Maintenance by the corporation of a liability insurance
   48  policy that covers any losses sustained by the principal caused
   49  by errors, omissions, or any intentional misconduct committed by
   50  the corporation’s officers or agents. The policy must cover all
   51  principals for whom the corporation is acting as an agent for
   52  losses up to $250,000. The terms of the policy must cover acts
   53  or omissions of each agent or employee of the corporation who
   54  has direct contact with the principal or access to the
   55  principal’s assets.
   56         c. Signing by the principal of a separate written
   57  instrument containing the following language in 14-point
   58  uppercase type:
   59  
   60  I HAVE BEEN ADVISED THAT OFFICERS OF THE NOT-FOR-PROFIT
   61  CORPORATION HAVE DECLINED TO AGREE TO BE JOINTLY AND SEVERALLY
   62  LIABLE WITH THE NOT-FOR-PROFIT CORPORATION FOR ACTS OR OMISSIONS
   63  OCCURRING IN THE EXERCISE OF THE POWER OF ATTORNEY EXECUTED
   64  UNDER CHAPTER 709, FLORIDA STATUTES.
   65  
   66  I HAVE ALSO BEEN ADVISED THAT THE NOT-FOR-PROFIT CORPORATION
   67  THAT I HAVE NAMED AS MY AGENT UNDER MY POWER OF ATTORNEY HAS
   68  ELECTED NOT TO POST AND MAINTAIN A FIDUCIARY BOND OR MAINTAIN
   69  INSURANCE IN ACCORDANCE WITH SECTION 709.2105(1)(c), FLORIDA
   70  STATUTES.
   71  
   72  I UNDERSTAND THAT THE ASSETS OF THE NOT-FOR-PROFIT CORPORATION
   73  MAY NOT BE SUFFICIENT TO COVER LIABILITY ARISING FROM AN ERROR,
   74  AN OMISSION, OR ANY INTENTIONAL MISCONDUCT COMMITTED BY AN
   75  EMPLOYEE OR AGENT OF THE CORPORATION.
   76         d.Designation of the corporation by a principal as an
   77  agent under a power of attorney and the corporation acts as an
   78  agent for the principal. However, each officer of the
   79  corporation is jointly and severally liable with the corporation
   80  for acts and omissions under the power of attorney and this
   81  chapter which occur when there is no fiduciary bond as provided
   82  in sub-subparagraph a., liability insurance as provided in sub
   83  subparagraph b., or signed acknowledgement as provided in sub
   84  subparagraph c.
   85         (2) A power of attorney must be signed by the principal and
   86  by two subscribing witnesses and be acknowledged by the
   87  principal before a notary public or as otherwise provided in s.
   88  695.03.
   89         (3) If the principal is physically unable to sign the power
   90  of attorney, the notary public before whom the principal’s oath
   91  or acknowledgment is made may sign the principal’s name on the
   92  power of attorney pursuant to s. 117.05(14).
   93         Section 2. This act shall take effect July 1, 2015.