(1) At any time during proceedings to determine incapacity but before the entry of an order determining incapacity, the authority granted under an alleged incapacitated person‘s power of attorney to a parent, spouse, child, or grandchild is suspended when the petitioner files a motion stating that a specific power of attorney should be suspended for any of the following grounds:

(a) The agent’s decisions are not in accord with the alleged incapacitated person‘s known desires.

Terms Used In Florida Statutes 744.3203

  • Court: means the circuit court. See Florida Statutes 744.102
  • Incapacitated person: means a person who has been judicially determined to lack the capacity to manage at least some of the property or to meet at least some of the essential health and safety requirements of the person. See Florida Statutes 744.102
  • 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: 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
  • Property: means both real and personal property or any interest in it and anything that may be the subject of ownership. See Florida Statutes 744.102
(b) The power of attorney is invalid.
(c) The agent has failed to discharge his or her duties or incapacity or illness renders the agent incapable of discharging duties.
(d) The agent has abused powers.
(e) There is a danger that the property of the alleged incapacitated person may be wasted, misappropriated, or lost unless the authority under the power of attorney is suspended.

Grounds for suspending a power of attorney do not include the existence of a dispute between the agent and the petitioner which is more appropriate for resolution in some other forum or a legal proceeding other than a guardianship proceeding.

(2) The motion must:

(a) Identify one or more of the grounds in subsection (1);
(b) Include specific statements of fact showing that grounds exist to justify the relief sought; and
(c) Include the following statement: “Under penalties of perjury, I declare that I have read the foregoing motion and that the facts stated in it are true to the best of my knowledge and belief,” followed by the signature of the petitioner.
(3) Upon the filing of a response to the motion by the agent under the power of attorney, the court shall schedule the motion for an expedited hearing. Unless an emergency arises and the agent’s response sets forth the nature of the emergency, the property or matter involved, and the power to be exercised by the agent, notice must be given to all interested persons, the alleged incapacitated person, and the alleged incapacitated person’s attorney. The court order following the hearing must set forth what powers the agent is permitted to exercise, if any, pending the outcome of the petition to determine incapacity.
(4) In addition to any other remedy authorized by law, a court may award reasonable attorney fees and costs to an agent who successfully challenges the suspension of the power of attorney if the petitioner’s motion was made in bad faith.
(5) The suspension of authority granted to persons other than a parent, spouse, child, or grandchild shall be as provided in s. 709.2109.
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