Effective October 1, 2011, the legislature substantially revised Florida’s Durable Power of Attorney Statute. While durable powers of attorney executed before October 1, 2011 are still effective and valid, there are at least three reasons you may wish to consult with your attorney regarding your power of attorney.
- The new Statute includes special language related to bank and brokerage accounts which some banks and brokers may look for in the document itself when a power of attorney is presented by the Agent to access such accounts.
- If you have an existing power of attorney where your intention is to have joint power holders always act together, and not separately, you may wish to have the language of your power of attorney reviewed. The new statute presumes any joint power of attorney with joint Agents means either one of the Agents may act individually as well, unless the language clearly specifies that the joint Agents can only act together.
- If you are presently acting as an Agent under a power of attorney for an incapacitated person, you may wish to consult your attorney as to the additional responsibilities and restrictions now placed upon Agents particularly in preserving the principal’s estate plan, as well as the specific sanctions, restrictions and possible causes of action that can be brought against an Agent who does not properly exercise his or her fiduciary responsibilities.
You are one of three adult children. Your widowed mother is changing her trust. She will divide her property equally among you, your sister and your older brother. However, she feels your older brother will never be able to handle money responsibly so she has decided to keep his share in trust for his lifetime with distribution of income and principal to your brother under specific circumstances outlined in the trust. The balance of your brother’s share, after his death, will pass outright to his children when they are adults. One of the assets in trust is a family business entity, and while your mother wants your older brother to receive a share of the distributions equally, she does not want him to know too much about the business itself. She recognizes the “strain” it will put on your relationship if she makes you the successor Trustee, so she has selected a non-family member individual Trustee, and, in the alternative to this individual, a local bank with appropriate trustee powers under Florida law. Your mother asks you, as her most responsible child, to be the Trust Protector to “oversee” matters for the family and assures you it won’t take too much of your time. Should you say yes? Before you agree, you should have a full discussion with your mother as to your role and request to see the trust document to ascertain, in advance, your responsibilities and the safeguards, limitations and protections provided to you as the Trust Protector.
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