Florida Statutes 709.2116 – Judicial relief; conflicts of interests
Current as of: 2023 | Check for updates
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(1) A court may construe or enforce a power of attorney, review the agent‘s conduct, terminate the agent’s authority, remove the agent, and grant other appropriate relief.
(2) The following persons may petition the court:
(a) The principal or the agent, including any nominated successor agent.
Terms Used In Florida Statutes 709.2116
- 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
- Corporation: A legal entity owned by the holders of shares of stock that have been issued, and that can own, receive, and transfer property, and carry on business in its own name.
- Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.
- Fiduciary: A trustee, executor, or administrator.
- Guardian: A person legally empowered and charged with the duty of taking care of and managing the property of another person who because of age, intellect, or health, is incapable of managing his (her) own affairs.
- 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
- Principal: means an individual who grants authority to an agent in a power of attorney. See Florida Statutes 709.2102
- Third person: means any person other than the principal, or the agent in the agent's capacity as agent. See Florida Statutes 709.2102
- Trustee: A person or institution holding and administering property in trust.
(b) A guardian, conservator, trustee, or other fiduciary acting for the principal or the principal’s estate.
(c) A person authorized to make health care decisions for the principal if the health care of the principal is affected by the actions of the agent.
(d) Any other interested person if the person demonstrates to the court’s satisfaction that the person is interested in the welfare of the principal and has a good faith belief that the court’s intervention is necessary.
(e) A governmental agency having regulatory authority to protect the welfare of the principal.
(f) A person asked to honor the power of attorney.
(3) In any proceeding commenced by filing a petition under this section, including, but not limited to, the unreasonable refusal of a third person to allow an agent to act pursuant to the power of attorney, and in challenges to the proper exercise of authority by the agent, the court shall award reasonable attorney fees and costs as in chancery actions.
(4) If an agent’s exercise of a power is challenged in a judicial proceeding brought by or on behalf of the principal on the grounds that the exercise of the power was affected by a conflict of interest, and evidence is presented that the agent or an affiliate of the agent had a personal interest in the exercise of the power, the agent or affiliate has the burden of proving, by clear and convincing evidence that the agent acted:
(a) Solely in the interest of the principal; or
(b) In good faith in the principal’s best interest, and the conflict of interest was expressly authorized in the power of attorney.
(5) For purposes of subsection (4):
(a) A provision authorizing an agent to engage in a transaction affected by a conflict of interest which is inserted into a power of attorney as the result of the abuse of a fiduciary or confidential relationship with the principal by the agent or the agent’s affiliate is invalid.
(b) Affiliates of an agent include:
1. The agent’s spouse;
2. The agent’s descendants, siblings, parents, or their spouses;
3. A corporation or other entity in which the agent, or a person who owns a significant interest in the agent, has an interest that might affect the agent’s best judgment;
4. A person or entity that owns a significant interest in the agent; or
5. The agent acting in a fiduciary capacity for someone other than the principal.