How do you change your power of attorney?

Full Question:

if I give a person power of attorney and I decide to designate someone else later must my lawyer notify the first person that they no longer have power of attorny?
06/20/2007   |   Category: Power of Attorney   |   State: Florida   |   #6547

Answer:

You will need to follow your state's laws regarding amendment or revocation of a power of attorney.

The applicable Florida statutes are as follows:

709.02 Power of appointment; method of release. —

Powers of appointment over any property, real, personal, intangible or
mixed, may be released, in whole or in part, by a written instrument
signed by the donee or donees of such powers. Such written releases shall
be signed in the presence of two witnesses but need not be sealed,
acknowledged or recorded in order to be valid, nor shall it be necessary
to the validity of such releases for spouses of married donees to join
such donees in the execution of releases, in whole or part, of powers of
appointment.

709.04 Power of appointment; effect of release. —

Any power of appointment wholly released by a written instrument signed
by the donee or donees of such power shall be, in legal effect, completely
revoked, and shall not, after such release, be subject to being exercised
in any manner whatsoever. Any power of appointment partially released by a
written instrument signed by the donee or donees of such power shall be, in
legal effect, as to such released part, completely revoked, and shall not
after such release be subject to being exercised in any manner whatsoever
as to such released part.

709.07 Power of appointment; effect of release on title to property. —

No such release, in whole or in part, of a power of appointment shall
affect the title to property of any bona fide purchaser for value who does
not have notice or knowledge of such release.

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(12)(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. If an emergency arises after initiation of proceedings to determine
incapacity and before adjudication regarding the principal's capacity, the
attorney in fact may petition the court in which the proceeding is pending
for authorization to exercise a power granted under the durable power of
attorney. The petition must set forth the nature of the emergency, the
property or matter involved, and the power to be exercised by the attorney
in fact.

3. Notwithstanding the provisions of this section, a proceeding to
determine incapacity must not affect any authority of the attorney in fact
to make health care decisions for the principal, including, but not limited
to, those defined in chapter 765, unless otherwise ordered by the court. If
the principal has executed a health care advance directive designating a
health care surrogate pursuant to chapter 765, the terms of the directive
will control if the two documents are in conflict unless the durable power
of attorney is later executed and expressly states otherwise.

(4) PROTECTION WITHOUT NOTICE; GOOD FAITH ACTS; AFFIDAVITS. —

(a) Any third party may rely upon the authority granted in a durable
power of attorney that is not conditioned on the principal's lack of
capacity to manage property until the third party has received notice as
provided in subsection (5). A third party may, but need not, require the
attorney in fact to execute an affidavit pursuant to paragraph (c).

(b) Any third party may rely upon the authority granted in a durable
power of attorney that is conditioned on the principal's lack of capacity
to manage property as defined in s. 744.102(12)(a) only after receiving the
affidavits provided in paragraphs (c) and (d), and such reliance shall end
when the third party has received notice as provided in subsection (5).

(c) An affidavit executed by the attorney in fact must state where the
principal is domiciled, that the principal is not deceased, and that there
has been no revocation, partial or complete termination by adjudication of
incapacity or by the occurrence of an event referenced in the durable power
of attorney, or suspension by initiation of proceedings to determine
incapacity or to appoint a guardian of the durable power of attorney at the
time the power of attorney is exercised. A written affidavit executed by
the attorney in fact under this paragraph may, but need not, be in the
following form:

STATE OF_______________

COUNTY OF_______________

Before me, the undersigned authority, personally appeared (attorney in
fact) ("Affiant"), who swore or affirmed that:

1. Affiant is the attorney in fact named in the Durable Power of Attorney
executed by (principal) ("Principal") on (date).

2. This Durable Power of Attorney is currently exercisable by Affiant.
The principal is domiciled in (insert name of state, territory, or foreign
country).

3. To the best of the Affiant's knowledge after diligent search and
inquiry:

a. The Principal is not deceased; and

b. There has been no revocation, partial or complete termination by
adjudication of incapacity or by the occurrence of an event referenced in
the durable power of attorney, or suspension by initiation of proceedings
to determine incapacity or to appoint a guardian.

4. Affiant agrees not to exercise any powers granted by the Durable Power
of Attorney if Affiant attains knowledge that it has been revoked,
partially or completely terminated, suspended, or is no longer valid
because of the death or adjudication of incapacity of the Principal.

____________________

(Affiant)

Sworn to (or affirmed) and subscribed before me this ___ day of (month),
(year), by (name of person making statement)

(Signature of Notary Public-State of Florida)

(Print, Type, or Stamp Commissioned Name of Notary Public)

Personally Known OR Produced Identification

(Type of Identification Produced)

(d) A determination that a principal lacks the capacity to manage
property as defined in s. 744.102(12)(a) must be made and evidenced by the
affidavit of a physician licensed to practice medicine pursuant to
chapters 458 and 459 as of the date of the affidavit. A judicial
determination that the principal lacks the capacity to manage property
pursuant to chapter 744 is not required prior to the determination by the
physician and the execution of the affidavit. For purposes of this
section, the physician executing the affidavit must be the primary
physician who has responsibility for the treatment and care of the
principal. The affidavit executed by a physician must state where the
physician is licensed to practice medicine, that the physician is the
primary physician who has responsibility for the treatment and care of the
principal, and that the physician believes that the principal lacks the
capacity to manage property as defined in s. 744.102(12)(a). The
affidavit may, but need not, be in the following form:

STATE OF_______________

COUNTY OF_______________

Before me, the undersigned authority, personally appeared (name of
physician), Affiant, who swore or affirmed that:

1. Affiant is a physician licensed to practice medicine in (name of
state, territory, or foreign country).

2. Affiant is the primary physician who has responsibility for the
treatment and care of (principal's name).

3. To the best of Affiant's knowledge after reasonable inquiry, Affiant
believes that the principal lacks the capacity to manage property,
including taking those actions necessary to obtain, administer, and dispose
of real and personal property, intangible property, business property,
benefits, and income.

____________________

(Affiant)

Sworn to (or affirmed) and subscribed before me this (day of) (month),
(year), by (name of person making statement)

(Signature of Notary Public-State of Florida)

(Print, Type, or Stamp Commissioned Name of Notary Public)

Personally Known OR Produced Identification

(Type of Identification Produced)

(e) A physician who makes a determination of incapacity to manage
property under paragraph (d) is not subject to criminal prosecution or
civil liability and is not considered to have engaged in unprofessional
conduct as a result of making such determination, unless it is shown by a
preponderance of the evidence that the physician making the determination
did not comply in good faith with the provisions of this section.

(f) A third party may not rely on the authority granted in a durable
power of attorney conditioned on the principal's lack of capacity to manage
property as defined in s. 744.102(12)(a) when any affidavit presented has
been executed more than 6 months prior to the first presentation of the
durable power of attorney to the third party.

(g) Third parties who act in reliance upon the authority granted to the
attorney in fact under the durable power of attorney and in accordance with
the instructions of the attorney in fact must be held harmless by the
principal from any loss suffered or liability incurred as a result of
actions taken prior to receipt of written notice pursuant to subsection
(5). A person who acts in good faith upon any representation, direction,
decision, or act of the attorney in fact is not liable to the principal or
the principal's estate, beneficiaries, or joint owners for those acts.

(h) A durable power of attorney may provide that the attorney in fact is
not liable for any acts or decisions made by the attorney in fact in good
faith and under the terms of the durable power of attorney.

(5) NOTICE. —

(a) A notice, including, but not limited to, a notice of revocation,
notice of partial or complete termination by adjudication of incapacity or
by the occurrence of an event referenced in the durable power of attorney,
notice of death of the principal, notice of suspension by initiation of
proceedings to determine incapacity or to appoint a guardian, or other
notice, is not effective until written notice is served upon the attorney
in fact or any third persons relying upon a durable power of attorney.

(b) Notice must be in writing and served on the person or entity to be
bound by the notice. Service may be by any form of mail that requires a
signed receipt or by personal delivery as provided for service of process.
Service is complete when received by interested persons or entities
specified in this section and in chapter 48, where applicable. In the case
of a financial institution as defined in chapter 655, notice, when not
mailed, must be served during regular business hours upon an officer or
manager of the financial institution at the financial institution's
principal place of business in Florida and its office where the power of
attorney or account was presented, handled, or administered. Notice by mail
to a financial institution must be mailed to the financial institution's
principal place of business in this state and its office where the power of
attorney or account was presented, handled, or administered. Except for
service of court orders, a third party served with notice must be given 14
calendar days after service to act upon that notice. In the case of a
financial institution, notice must be served before the occurrence of any
of the events described in s. 674.303.

(6) PROPERTY SUBJECT TO DURABLE POWER OF ATTORNEY. — Unless otherwise
stated in the durable power of attorney, the durable power of attorney
applies to any interest in property owned by the principal, including,
without limitation, the principal's interest in all real property,
including homestead real property; all personal property, tangible or
intangible; all property held in any type of joint tenancy, including a
tenancy in common, joint tenancy with right of survivorship, or a tenancy
by the entirety; all property over which the principal holds a general,
limited, or special power of appointment; choses in action; and all other
contractual or statutory rights or elections, including, but not limited
to, any rights or elections in any probate or similar proceeding to which
the principal is or may become entitled.

(7) POWERS OF THE ATTORNEY IN FACT AND LIMITATIONS. —

(a) Except as otherwise limited by this section, by other applicable law,
or by the durable power of attorney, the attorney in fact has full
authority to perform, without prior court approval, every act authorized
and specifically enumerated in the durable power of attorney. Such
authorization may include, except as otherwise limited in this section:

1. The authority to execute stock powers or similar documents on behalf
of the principal and delegate to a transfer agent or similar person the
authority to register any stocks, bonds, or other securities either into or
out of the principal's or nominee's name.

2. The authority to convey or mortgage homestead property. If the
principal is married, the attorney in fact may not mortgage or convey
homestead property without joinder of the spouse of the principal or the
spouse's legal guardian. Joinder by a spouse may be accomplished by the
exercise of authority in a durable power of attorney executed by the
joining spouse, and either spouse may appoint the other as his or her
attorney in fact.

(b) Notwithstanding the provisions of this section, an attorney in fact
may not:

1. Perform duties under a contract that requires the exercise of personal
services of the principal;

2. Make any affidavit as to the personal knowledge of the principal;

3. Vote in any public election on behalf of the principal;

4. Execute or revoke any will or codicil for the principal;

5. Create, amend, modify, or revoke any document or other disposition
effective at the principal's death or transfer assets to an existing trust
created by the principal unless expressly authorized by the power of
attorney; or

6. Exercise powers and authority granted to the principal as trustee or
as court-appointed fiduciary.

(c) If such authority is specifically granted in the durable power of
attorney, the attorney in fact may make all health care decisions on behalf
of the principal, including, but not limited to, those set forth in
chapter 765.

(8)[fn1] STANDARD OF CARE. — Except as otherwise provided in paragraph
(4)(e), an attorney in fact is a fiduciary who must observe the standards
of care applicable to trustees as described in s. 737.302. The attorney
in fact is not liable to third parties for any act pursuant to the
durable power of attorney if the act was authorized at the time. If the
exercise of the power is improper, the attorney in fact is liable to
interested persons as described in s. 731.201 for damage or loss
resulting from a breach of fiduciary duty by the attorney in fact to the
same extent as the trustee of an express trust.

(9) MULTIPLE ATTORNEYS IN FACT; WHEN JOINT ACTION REQUIRED. — Unless the
durable power of attorney provides otherwise:

(a) If a durable power of attorney is vested jointly in two attorneys in
fact by the same instrument, concurrence of both is required on all acts in
the exercise of the power.

(b) If a durable power of attorney is vested jointly in three or more
attorneys in fact by the same instrument, concurrence of a majority is
required in all acts in the exercise of the power.

(c) An attorney in fact who has not concurred in the exercise of
authority is not liable to the principal or any other person for the
consequences of the exercise. A dissenting attorney in fact is not liable
for the consequences of an act in which the attorney in fact joins at the
direction of the majority of the joint attorneys in fact if the attorney in
fact expresses such dissent in writing to any of the other joint attorneys
in fact at or before the time of the joinder.

(d) If the attorney in fact has accepted appointment either expressly in
writing or by acting under the power, this section does not excuse the
attorney in fact from liability for failure either to participate in the
administration of assets subject to the power or for failure to attempt to
prevent a breach of fiduciary obligations thereunder.

(10) POWERS OF REMAINING ATTORNEY IN FACT. — Unless the durable power of
attorney provides otherwise, all authority vested in multiple attorneys in
fact may be exercised by the one or more that remain after the death,
resignation, or incapacity of one or more of the multiple attorneys in
fact.

(11) DAMAGES AND COSTS. — In any judicial action under this section,
including, but not limited to, the unreasonable refusal of a third party to
allow an attorney in fact to act pursuant to the power, and challenges to
the proper exercise of authority by the attorney in fact, the prevailing
party is entitled to damages and costs, including reasonable attorney's
fees.

(12) APPLICATION. — This section applies to only those durable powers of
attorney executed on or after October 1, 1995.

(13) PARTIAL INVALIDITY. — If any provision of this section or its
application to any person or circumstance is held invalid, the invalidity
does not affect other provisions or applications of this section which can
be given effect without the invalid provision or application and to this
end the provisions of this section are severable.

[fn1] Note. — Section 24, ch. 2006-217, amended subsection (8), effective
July 1, 2007, to read:

(8) STANDARD OF CARE. — Except as otherwise provided in paragraph (4)(e),
an attorney in fact is a fiduciary who must observe the standards of care
applicable to trustees as described in s. 736.0901. The attorney in fact is
not liable to third parties for any act pursuant to the durable power of
attorney if the act was authorized at the time. If the exercise of the
power is improper, the attorney in fact is liable to interested persons as
described in s. 731.201 for damage or loss resulting from a breach of
fiduciary duty by the attorney in fact to the same extent as the trustee of
an express trust.

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