Durable Powers of Attorney

Florida Statute section 709.08 governs durable powers of attorney.  A durable power of attorney is a written document whereby one person can designate another to act for them.  The person who signs the document and appoints another is the “principal” and the person appointed to act is the “attorney in fact.”  The attorney in fact is an agent of the principal.  The term “attorney in fact”  identifies him as a particular type of agent who has been authorized to act for a principal under a power of attorney.  An attorney in fact can be a person who is at least 18, a trust company able to do business in Florida, or a charitable organization.  The attorney in fact cannot delegate his or her authority, except that the power to transfer stocks can be delegated to a transfer agent.  The durable power of attorney must be executed with the same formality as a transfer of real property.  That is, it must be signed in the presence of  two witnesses.

Ordinarily the authority of any agent ends with the incapacity of  his or her principal.  This is not the case with a durable power of attorney.  In fact, that is where the term durable comes from; i.e., it is “durable” because it survives the agent lack of capacity.  A durable power of attorney must contain the phrase:  “This durable power of attorney is not affected by subsequent incapacity of the principal except as provided in s. 709.08, Florida Statutes”.  However, “similar words showing the intent that the authority of the attorney in fact survive the principal’s incompetency may also be used.  Therefore, a durable power of attorney can be useful in avoiding guardianship because the attorney-in-fact can manage property for the incapacitated person.

It is not, however, necessary for the principal to be incapacitated for the durable power of attorney to be effective.  The attorney in fact can begin using the power of attorney the day it is signed.  The principal does not have to be incapacitated. This makes a durable power of attorney both very useful and very dangerous.  Powers of attorney can be, and have been, used to steal from the principal.  For that reason, I caution clients they may not want to deliver them until needed.  An other alternative is to appoint co-attorneys-in-fact in the hope that each will keep the other honest.

However, durable powers of attorney can be “springing,” which means they cannot be used by the attorney in fact until the principal becomes incapacitated.  Incapacity is defined as the inability to manage property  as defined in Florida Statute section 744.102(12)(a) . The exercise of a springing power requires the delivery of affidavits to the third-party.  This can be problematic because a physician may be reluctant to certify someone as incapacitated as required for the usefulness of a springing power.

Any lawyer who prepares powers of attorney has probably seen instances where people waited until it is too late to seek a power of attorney.  Often a parent becomes incapacitated and then a child realizes that they need to sell property or transact some business for the parent.  If the parent is already too incapacitated to do it themselves, the child may seek  a power of attorney so they can help the parent.  Unfortunately, it is too late for an incapacitated parent to sign a power of attorney.  A person must be competent to delegate their authority to another.  Powers of attorney are useful for planning ahead, but you must plan ahead.


Hiring A Lawyer Is Not As Expensive As You Think

Here are six good reasons for why hiring a business lawyer is money well spent:  6 Reasons Why Hiring A Business Lawyer Is Not That Expensive. As someone who litigates disputes, I can say that litigation is much more expensive than doing it right in the first place.

You’re Not Married Until The Paperwork Is Finished

When I first heard of this case, I thought it was an interesting but isolated case– the sort of thing that happens but is not common.  I may have been wrong.  In one of those serendipitous coincidences, I met a lady at a speaking engagement who told me about a situation involving several of her friends.  Several couples at a club that she belonged to had recently been “married” by a notary who also belonged to the club.  They had ceremonies, but failed to get licenses.  Apparently, the notary informed them that a license was not necessary.  WRONG!

Florida outlawed common law marriages in 1967. Since then no amount of playing house together can make you husband and wife in Florida, as discovered by Kimberly Hall and Roberto Maal.  Ms. Hall and Dr. Maal had the full ceremony, represented to the world that they were husband and wife, purchased a home as “husband and wife,” and even had two children.  However, one small detail was never attended to; i.e., they failed to obtain a marriage license, solemnize the marriage before an acceptable official, and return the license to the clerk of the court for recording.  The completed step one (i.e., they got a license), but failed to complete steps two and three.  See, Fla. Stat. sections 741.01 to 741.212 Years later when trouble arose, Ms. Hall was denied a “divorce” because she and Dr. Maal were never married.

A failure to obtain a license and be properly married can have serious consequences in a number of situations besides divorces.  In a divorce, it can cause a loss of rights to marital property and alimony.  Moreover, in an estate, it could cause a loss of rights to a life estate in a homestead, an elective share, and family allowance.  If there is no marriage, then there is no surviving spouse.  If  the purchasers of real property are not married, then they do not acquire the property as tenants-by-the-entireties and have no creditor protection and no survivor rights.  The forgotten marriage license is the opposite of the forgotten spouse problem.  Either one is serious though.

You Can’t Dilly Dally On Your Way To Probate Court


The time limits in probate cases can be unforgivingly short.  For example, you must object to the personal representative’s accounting within thirty (30) days and set a hearing on your objection within ninety (90) days. A recent post in the Florida Probate & Trust Litigation Blog illustrates how true that is.

The issue in the case reported on, which was an opinion from the Third District Court of Appeal, was whether the three (3) month statute of limitations in Florida Statute section 733.212(3) applied to a motion to disqualify a personal representative.  The Third District Court of Appeal held that it did apply.  Consequently, a motion to disqualify filed more than three (3) months after the service of a notice of administration on the party seeking disqualification is barred.  What makes this case interesting is that it directly conflicts with a decision of the First District Court of Appeal, as certified by the Third District Court of Appeal.  The First DCA had held that the statute of limitations under Florida Statute section 733.212(3) did not apply to a motion to disqualify a non-resident personal representative.

The lesson of Hill v. Davis is that you cannot take your time when it comes to any potential claims or rights involving a deceased person or estate.  Most of the time limits are much shorter than in other litigation.  All claims against a decedent are barred two (2) years after the date of death.  Absent the granting of an extension of time, a claim may also be barred three (3) months from the first date of the publication of the notice to creditors.

While Hill v. Davis is a good example of the short time limits involved in probate litigation for lawyers and clients alike, the two cases together are good examples of why lawyers cannot always tell their clients what “the law” is. Trial courts are bound to follow the decisions of appellate courts in Florida.  Before the Third DCAs opinion was issued, a trial court in any of the DCAs was bound to follow the reasoning and opinion of the First DCA.  But now a trial court located in the First DCA must follow the opinion in Angelus v. Pass while a trial court in the Third DCA must follow Hill v. Davis.  This is true even if the judge thinks that the opinion of the other DCA is the more well reasoned and convincing opinion.  But what about a trial court in one of the other three (3) DCAs?  Trial courts in those three (3) DCAs are free to follow whichever opinion they think is the better one.  Yet another DCA may have a similar case before it and may try to reconcile the two cases, follow one of the two cases, or come up with yet another approach.  Eventually the Florida Supreme Court will resolve the conflict between the DCAs and its decision will become the law.  At least until a lower court distinguishes the Supreme Court’s opinion in a similar case or the waters are otherwise muddied.

Is it any wonder then that when a client consults a lawyer and asks “What is the law on this?”  that the lawyer scratches her head and says, “Well, I’ll have to do some research.”?  And later reports that “the law is unclear” or “conflicting.”  Add to that the fact that every litigated case has its own unique facts and it can be very difficult to predict the outcome of any case.