Recent changes in Florida Statute 709.2109 state that a person named as
agent under his/her spouse's Florida Durable Power of Attorney for Property
loses legal authority to act on the spouse's behalf in the event of divorce or
annulment, or when an action is filed for divorce or legal separation. The only
exception is if the Durable Power of Attorney specifically states otherwise (i.e., that the agents's powers continue in these circumstances. The new law became effective Oct. 1, 2011; however, it applies to every Florida Durable
Power of Attorney regardless of the date the document was executed.
A principal who is divorced, or for whom a divorce,
annulment, or legal separation is pending, should take additional steps to
ensure that an unsuspecting third party such as a bank or brokerage does not
permit the spouse (or ex-spouse) to handle the principal's affairs. The Durable
Power of Attorney should be formally revoked; the revocation should be recorded
on public record; and copies should be served on all of the principal's
financial institutions. Destroying the original Durable Power of Attorney is not
sufficient.
These additional steps are particularly critical for someone
whose Durable Power of Attorney was executed on or after October 1, 2011. In
the case of these instruments, a photocopy is considered as valid as the
original in the eyes of Florida law. Therefore, it much easier for
an unauthorized spouse or ex-spouse to inappropriately act by presenting a
photocopy to a financial institution.
Note: Florida Statute 765.104, the law governing the
Florida Health Care Power of Attorney, has not changed. Once a dissolution of
marriage has occurred, a person authorized to act as health care agent under
his/herspouse's Health Care Power of Attorney no longer has that authority.
However, a pending dissolution or annulment of marriage does not terminate the
spouse's authority. Therefore, if you are in the process of divorcing and your
Health Care Power of Attorney names your spouse as your health care agent, you
will have to formally revoke your Health Care Power of Attorney in order to
terminate your spouse's ability to make health care decisions on your
behalf.
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