Florida Statutes 709.2202 – Authority that requires separate signed enumeration
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(1) Notwithstanding s. 709.2201, an agent may exercise the following authority only if the principal signed or initialed next to each specific enumeration of the authority, the exercise of the authority is consistent with the agent’s duties under s. 709.2114, and the exercise is not otherwise prohibited by another agreement or instrument:
(a) Create an inter vivos trust;
Terms Used In Florida Statutes 709.2202
- Agent: means a person granted authority to act for a principal under a power of attorney, whether denominated an agent, attorney in fact, or otherwise. See Florida Statutes 709.2102
- Amendment: A proposal to alter the text of a pending bill or other measure by striking out some of it, by inserting new language, or both. Before an amendment becomes part of the measure, thelegislature must agree to it.
- Annuity: A periodic (usually annual) payment of a fixed sum of money for either the life of the recipient or for a fixed number of years. A series of payments under a contract from an insurance company, a trust company, or an individual. Annuity payments are made at regular intervals over a period of more than one full year.
- Beneficiary: A person who is entitled to receive the benefits or proceeds of a will, trust, insurance policy, retirement plan, annuity, or other contract. Source: OCC
- Broker-dealer: means a broker-dealer registered with the United States Securities and Exchange Commission or the Commodity Futures Trading Commission if the broker-dealer is acting in that capacity. See Florida Statutes 709.2102
- Donee: The recipient of a gift.
- Fiduciary: A trustee, executor, or administrator.
- Gift: A voluntary transfer or conveyance of property without consideration, or for less than full and adequate consideration based on fair market value.
- Inter vivos: Transfer of property from one living person to another living person.
- Obligation: An order placed, contract awarded, service received, or similar transaction during a given period that will require payments during the same or a future period.
- person: includes individuals, children, firms, associations, joint adventures, partnerships, estates, trusts, business trusts, syndicates, fiduciaries, corporations, and all other groups or combinations. See Florida Statutes 1.01
- Power of attorney: means a writing that grants authority to an agent to act in the place of the principal, whether or not the term is used in that writing. See Florida Statutes 709.2102
- Power of attorney: A written instrument which authorizes one person to act as another's agent or attorney. The power of attorney may be for a definite, specific act, or it may be general in nature. The terms of the written power of attorney may specify when it will expire. If not, the power of attorney usually expires when the person granting it dies. Source: OCC
- Presently exercisable general power of appointment: means , with respect to property or a property interest subject to a power of appointment, power exercisable at the time in question to vest absolute ownership in the principal individually, the principal's estate, the principal's creditors, or the creditors of the principal's estate. See Florida Statutes 709.2102
- Principal: means an individual who grants authority to an agent in a power of attorney. See Florida Statutes 709.2102
- Property: means anything that may be the subject of ownership, whether real or personal, legal or equitable, or any interest or right therein. See Florida Statutes 709.2102
- Right of survivorship: The ownership rights that result in the acquisition of title to property by reason of having survived other co-owners.
- Sign: means having present intent to authenticate or adopt a record to:(a) Execute by signature or mark; or(b) Attach to, or logically associate with the record an electronic sound, symbol, or process. See Florida Statutes 709.2102(b) With respect to a trust created by or on behalf of the principal, amend, modify, revoke, or terminate the trust, but only if the trust instrument explicitly provides for amendment, modification, revocation, or termination by the settlor’s agent;(c) Make a gift, subject to subsection (4);(d) Create or change rights of survivorship;(e) Create or change a beneficiary designation;(f) Waive the principal’s right to be a beneficiary of a joint and survivor annuity, including a survivor benefit under a retirement plan; or(g) Disclaim property and powers of appointment.
(2) In addition to signing the power of attorney on behalf of the principal pursuant to s. 709.2105(3), if the principal is physically unable to sign or initial next to any enumerated authority for which subsection (1) requires the principal to sign or initial, the notary public before whom the principal’s oath or acknowledgment is made may sign the principal’s name or initials if:
(a) The principal directs the notary to sign the principal’s name or initials on the power of attorney next to any enumerated authority for which subsection (1) requires the principal to sign or initial;
(b) The signing or initialling by the notary is done in the presence of the principal and witnessed by two disinterested subscribing witnesses; and
(c) The notary writes the statement “Signature or initials affixed by the notary pursuant to s. 709.2202(2), Florida Statutes,” below each signature or initial that the notary writes on behalf of the principal.
Only one notarial certificate in substantially the same form as those described in s. 117.05(14), which states the circumstances of all signatures and initials written by the notary public, is required to be completed by the notary public.
(3) Notwithstanding a grant of authority to do an act described in subsection (1), unless the power of attorney otherwise provides, an agent who is not an ancestor, spouse, or descendant of the principal may not exercise authority to create in the agent, or in an individual to whom the agent owes a legal obligation of support, an interest in the principal’s property, whether by gift, right of survivorship, beneficiary designation, disclaimer, or otherwise.
(4) Unless the power of attorney otherwise provides, a provision in a power of attorney granting general authority with respect to gifts authorizes the agent to only:
(a) Make outright to, or for the benefit of, a person a gift of any of the principal’s property, including by the exercise of a presently exercisable general power of appointment held by the principal, in an amount per donee per calendar year not to exceed the annual dollar limits of the federal gift tax exclusion under 26 U.S.C. § 2503(b), as amended, without regard to whether the federal gift tax exclusion applies to the gift, or if the principal’s spouse agrees to consent to a split gift pursuant to 26 U.S.C. § 2513, as amended, in an amount per donee per calendar year not to exceed twice the annual federal gift tax exclusion limit; and
(b) Consent, pursuant to 26 U.S.C. § 2513, as amended, to the splitting of a gift made by the principal’s spouse in an amount per donee per calendar year not to exceed the aggregate annual gift tax exclusions for both spouses.
(5) Notwithstanding subsection (1), if a power of attorney is otherwise sufficient to grant an agent authority to conduct banking transactions, as provided in s. 709.2208(1), conduct investment transactions as provided in s. 709.2208(2), or otherwise make additions to or withdrawals from an account of the principal, making a deposit to or withdrawal from an insurance policy, retirement account, individual retirement account, benefit plan, bank account, or any other account held jointly or otherwise held in survivorship or payable on death, is not considered to be a change to the survivorship feature or beneficiary designation, and no further specific authority is required for the agent to exercise such authority. A financial institution or broker-dealer does not have a duty to inquire as to the appropriateness of the agent’s exercise of that authority and is not liable to the principal or any other person for actions taken in good faith reliance on the appropriateness of the agent’s actions. This subsection does not eliminate the agent’s fiduciary duties to the principal with respect to any exercise of the power of attorney.
(6) Notwithstanding subsection (1) and s. 709.2106(3), a power of attorney, executed by a principal domiciled in this state at the time of execution, that is witnessed remotely pursuant to s. 117.285 or other applicable law by a witness who is not in the physical presence of the principal is not effective to grant authority to an agent to take any of the actions enumerated in subsection (1).
(7) This section does not apply to a power of attorney executed before October 1, 2011.