Florida Senate - 2015 SENATOR AMENDMENT Bill No. CS/CS/CS/HB 5, 1st Eng. Ì611090tÎ611090 LEGISLATIVE ACTION Senate . House . . . Floor: 1/WD/2R . 04/28/2015 03:10 PM . ————————————————————————————————————————————————————————————————— ————————————————————————————————————————————————————————————————— Senator Lee moved the following: 1 Senate Amendment (with title amendment) 2 3 Before line 86 4 insert: 5 Section 1. Section 709.2105, Florida Statutes, is amended 6 to read: 7 709.2105 Qualifications of agent; execution of power of 8 attorney.— 9 (1) The agent must be one of the following: 10 (a) A natural person who is 18 years of age or older.
or11 (b) A financial institution that has trust powers, hasa 12 place of business in this state, and authorization is authorized13 to conduct trust business in this state. 14 (c) A not-for-profit corporation that complies with the 15 requirements of subparagraphs 1.-7. 16 1. The not-for-profit corporation must be qualified to do 17 business in the state; must be organized for charitable or 18 religious purposes in this state; must have served as a court 19 appointed guardian before January 1, 1996; must be tax-exempt 20 under s. 501(c)(3) of the Internal Revenue Code; may not charge 21 a fee or cost to a principal for services but may be reimbursed 22 for actual expenses; and must serve only principals who reside 23 in communities that provide housing for older persons as defined 24 in s. 760.29(4) and former residents of such communities. 25 2. The not-for-profit corporation must have each principal 26 who signs a power of attorney on or after July 1, 2015 sign a 27 separate written instrument containing the following language in 28 14-point uppercase type: 29 30 I UNDERSTAND THAT THE AGENT IS A NOT-FOR-PROFIT 31 CORPORATION THAT IS NOT CHARGING A FEE FOR SERVICES TO 32 ME (BUT MAY BE REIMBURSED FOR ACTUAL EXPENSES) AND 33 THAT THE INDIVIDUALS THAT WILL PROVIDE ME SERVICES ARE 34 VOLUNTEERS WHO MAY NOT HAVE A STATE LICENSE OR 35 CERTIFICATION. 36 37 I UNDERSTAND THAT THE ASSETS OF THE NOT-FOR-PROFIT 38 CORPORATION MAY NOT BE SUFFICIENT TO COVER LIABILITY 39 ARISING FROM AN ERROR, AN OMISSION, OR ANY INTENTIONAL 40 MISCONDUCT COMMITTED BY A DIRECTOR, OFFICER, EMPLOYEE, 41 VOLUNTEER OR AGENT OF THE CORPORATION. 42 43 3. The not-for-profit corporation must allow the clerk of 44 the circuit court for the circuit in which the corporation 45 maintains its primary place of business to, at any time, audit 46 the books and records of the corporation upon request. 47 4. No person shall act on behalf of the not-for-profit 48 corporation in its role as an agent who: 49 a. Has been convicted of a felony; who, from any incapacity 50 or illness, is incapable of discharging the duties of an agent; 51 or who is otherwise unsuitable to perform the duties of an 52 agent. 53 b. Has been arrested for and is awaiting final disposition 54 of, has been found guilty of, regardless of adjudication, or has 55 entered a plea of nolo contendere or guilty to, any offense 56 involving dishonesty or listed at s. 435.04(2), or similar law 57 of another jurisdiction. 58 c. Has been adjudicated bankrupt in the previous 10 years. 59 d. Provides substantial services to the principal in a 60 professional or business capacity, or is a creditor of the 61 principal, and retains that previous professional or business 62 relationship. 63 e. Is in the employ of any person, agency, government, or 64 corporation that provides service to the principal in a 65 professional or business capacity unless such person so employed 66 is the spouse, adult child, parent, or sibling of the principal 67 or a court determines that the potential conflict of interest is 68 insubstantial and the ability of such person to act on behalf of 69 the not-for-profit corporation in its role as agent would 70 clearly be in the principal’s best interest. 71 5. The not-for-profit corporation shall require all 72 directors, officers, and employees of the not-for-profit 73 corporation, and any person that acts on behalf of the not-for 74 profit corporation in its role as an agent, to submit, at their 75 own expense or at the expense of the corporation, but never at 76 the cost of any principal, to a credit history background check 77 prior to acting as an agent. A credit history background check 78 shall be completed again at least once every 2 years after the 79 initial check. The corporation shall maintain a file on each 80 director, officer, and employee, and any person that acts on 81 behalf of the not-for-profit corporation in its role as an 82 agent, and retain in the file documentation of the result of any 83 credit history background check conducted under this 84 subparagraph. The clerk of court may audit such credit history 85 background files. 86 6. The not-for-profit corporation shall require all 87 directors, officers, and employees of the not-for-profit 88 corporation, and any person that acts on behalf of the not-for 89 profit corporation in its role as an agent, to submit, at their 90 own expense or at the expense of the corporation, but never at 91 the cost of any principal, to a criminal history background 92 check prior to acting as an agent. The corporation shall 93 maintain a file on each director, officer, and employee, and any 94 person that acts on behalf of the not-for-profit corporation in 95 its role as an agent, and retain in the file documentation of 96 the result of any criminal history background check conducted 97 under this subparagraph. The corporation must allow a principal 98 to review the criminal history background check as to any person 99 acting on behalf of such principal. The clerk of court may audit 100 such criminal history background files. 101 7. The not-for-profit corporation must keep on file in the 102 community in which the corporation is acting an updated listing 103 of each person who is authorized to act on behalf of the 104 corporation as an agent, along with a copy of the background 105 check requirements. Any principal may request a copy of the list 106 of authorized persons. 107 8. Any person that acts on behalf of a not-for-profit 108 corporation pursuant to this paragraph in its role as an agent 109 under a power of attorney has a fiduciary responsibility to the 110 principal and must comply with all provisions of this chapter. 111 9. In addition to any other penalty provided by law, any 112 person acting on behalf of a not-for-profit corporation in its 113 role as an agent pursuant to this paragraph is subject to the 114 provisions of s. 825.103. 115 (2) A power of attorney must be signed by the principal and 116 by two subscribing witnesses and be acknowledged by the 117 principal before a notary public or as otherwise provided in s. 118 695.03. 119 (3) If the principal is physically unable to sign the power 120 of attorney, the notary public before whom the principal’s oath 121 or acknowledgment is made may sign the principal’s name on the 122 power of attorney pursuant to s. 117.05(14). 123 124 ================= T I T L E A M E N D M E N T ================ 125 And the title is amended as follows: 126 Between lines 2 and 3 127 insert: 128 s. 709.2105, F.S.; revising the qualifications of an 129 agent in the execution of power of attorney to include 130 certain not-for-profit corporations; providing 131 criteria for such corporations; providing that a 132 person acting on behalf of the corporation in its role 133 as an agent under a power of attorney has a fiduciary 134 responsibility to the principal; amending 135