BUL4602 Fall-2011 Lecture 10 , Reading 4 - DURABLE POWER OF...

DURABLE POWER OF ATTORNEY
Florida Statute Section 709.08 Durable power of attorney. --
(1) CREATION OF DURABLE POWER OF ATTORNEY.--A durable power of attorney is a written power
of attorney by which a principal designates another as the principal's attorney in fact. The durable
power of attorney must be in writing, must be executed with the same formalities required for the
conveyance of real property by Florida law, and must contain the words: "This durable power of
attorney is not affected by subsequent incapacity of the principal except as provided in s. 709.08 ,
Florida Statutes"; or similar words that show the principal's intent that the authority conferred is
exercisable notwithstanding the principal's subsequent incapacity, except as otherwise provided by
this section. The durable power of attorney is exercisable as of the date of execution; however, if the
durable power of attorney is conditioned upon the principal's lack of capacity to manage property as
defined in s. 744.102 (10)(a), the durable power of attorney is exercisable upon the delivery of
affidavits in paragraphs (4)(c) and (d) to the third party.
(2) WHO MAY SERVE AS ATTORNEY IN FACT.--The attorney in fact must be a natural person who is
18 years of age or older and is of sound mind, or a financial institution, as defined in chapter 655,
with trust powers, having a place of business in this state and authorized to conduct trust business in
this state. A not-for-profit corporation, organized for charitable or religious purposes in this state,
which has qualified as a court-appointed guardian prior to January 1, 1996, and which is a tax-exempt
organization under 26 U.S.C. s. 501(c)(3), may also act as an attorney in fact. Notwithstanding any
contrary clause in the written power of attorney, no assets of the principal may be used for the benefit
of the corporate attorney in fact, or its officers or directors.
(3) EFFECT OF DELEGATION, REVOCATION, OR FILING OF PETITION TO DETERMINE INCAPACITY.--
(a) A durable power of attorney is nondelegable except as permitted in subparagraph (7)(a)1.
(b) The attorney in fact may exercise the authority granted under a durable power of attorney until
the principal dies, revokes the power, or is adjudicated totally or partially incapacitated by a court of
competent jurisdiction, unless the court determines that certain authority granted by the durable
power of attorney is to remain exercisable by the attorney in fact.
(c)1. If any person or entity initiates proceedings in any court of competent jurisdiction to determine
the principal's incapacity, the authority granted under the durable power of attorney is suspended
until the petition is dismissed or withdrawn. Notice of the petition must be served upon all attorneys
in fact named in any power of attorney which is known to the petitioner.