BUL4602 Fall-2011 Lecture 10 , Reading 4

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

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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. 2.
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This note was uploaded on 08/23/2011 for the course BUL 4602 taught by Professor Johnson during the Spring '11 term at W. Florida.

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

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