In our Michigan estate planning practice at Barron, Rosenberg, Mayoras & Mayoras, P.C., we work with clients who spend part of the year in the Sunshine State or who have real estate or other interests in both Michigan and Florida. One primary concern we address for those clients is making sure their estate plans include documents that comply with the Florida powers of attorney law to fully protect their interests in both states.
Is Your Michigan Power of Attorney Valid in Florida?
The answer to the question is a qualified “yes.” If you have a valid Michigan power of attorney, it will be recognized as valid in Florida. However, when your Michigan power of attorney is used in Florida, it will be subject to Florida power-of-attorney laws. Your agent (the person you authorize to act on your behalf in the power of attorney) may only act as permitted by Florida law.
There are specific provisions in the Florida Power of Attorney Act that will affect how your Michigan power of attorney can be used in Florida. First, if your power of attorney is presented by your agent to a third party (like a bank or other financial professional), the third party has certain rights under the law, including the following:
- The third party may require your agent to sign an affidavit (which is a sworn written statement) expressly stating that he or she is validly exercising the authority under the power of attorney. This affidavit relieves the third party of any liability for accepting the power of attorney.
- The third party has the right under Florida law to request an opinion from legal counsel concerning the validity of the power of attorney, including a determination of whether the document is valid under Michigan law.
If your agent presents your document to a third party and encounters a refusal to accept it, the third party must provide your agent with a written explanation of the refusal within a reasonable time after the power of attorney is presented. In some situations, if refusal to honor a power of attorney causes financial damage, the third party may be liable for damages, attorney’s fees, and court costs. If your agent encounters a third party refusal to accept your valid Michigan power of attorney, you or your agent should consult immediately with an attorney.
In addition, if your Michigan power of attorney includes the authority to act on your behalf in a real estate transaction, special caution is warranted. Florida law has specific requirements for real estate transactions that will apply to exercise of the power of attorney. If your Michigan document does not comply with those requirements, use of the Michigan power of attorney in Florida may be limited to non-real-estate transactions, such as banking.
Finally, under Florida law, your Michigan power of attorney may only be effective insofar as powers that are specifically enumerated in the document itself. A “blanket” power of attorney that purports to grant general, all-inclusive powers to an agent may not be given effect in Florida.
The best way to avoid these potential problems and delays is relatively simple. The solution our estate planning attorneys at BRMM generally recommend for our clients with both Michigan and Florida connections is maintaining two different sets of your powers of attorney: one set that complies with Michigan law requirements, and a second set that complies with Florida law requirements.
Key Provisions in the Florida Power of Attorney Act
Florida law governing powers of attorney changed substantially in October 2011. One of the primary reasons for the changes was to prevent unscrupulous financial exploitation of elders through use of powers of attorneys. When you create new powers of attorney compliant with Florida law or revise powers executed prior to 2011, you will encounter some of the key changes that occurred in the 2011 law. They include:
Requirements for Creating a Florida Power of Attorney
For a Florida power of attorney to be valid, several requirements must be met. The principal (who is the person creating the power) must understand the effect of the document, what property is affected by the power, and who is designated as the agent under the power. The document must be signed by the principal. In addition, the document must be signed by two witnesses who observe the principal signing the document. A notary public also must attest to the signature. The notary can serve as one of the witnesses.
A Florida power of attorney that does not meet these strict signature requirements is not valid or effective in Florida. Importantly, these signature requirements will not affect the validity of a Michigan power of attorney that complies with Michigan execution requirements.
Durable Powers of Attorney in Florida
A durable power of attorney is a legal document that grants an agent authority that remains in effect if the principal becomes incapacitated. A durable power of attorney can relate to either healthcare or financial decisions. Unless a power of attorney meets specific legal requirements to qualify as a durable power of attorney, the power of attorney terminates when the principal becomes incapacitated.
Prior to 2011, Florida durable powers of attorney could be written to become effective in the event of the principal’s incapacity. Such powers are sometimes referred to as “springing” powers. For documents created in Florida after the 2011 law went into effect, a durable power of attorney cannot create a “springing” power. All durable powers of attorney are considered to be effective immediately on signing. (The new law did not invalidate pre-2011 documents that created springing powers.)
In addition, if you have a healthcare durable power of attorney or advance directive, it is subject not only to the Florida Power of Attorney Act but also to a separate statute called the Health Care Surrogate Act.
Termination of a Power of Attorney
In Florida, an agent’s authority under a power of attorney automatically ends if any of these events occurs:
- The principal dies;
- The principal revokes the power of attorney, which must be done in writing (and may be accomplished by a later power of attorney);
- A court declares the principal to be incapacitated, if the power of attorney does not by its terms qualify as a durable power of attorney that survives incapacity;
- The purpose of the power is completed or the specified term expires;
- The agent dies, resigns or is removed, or becomes incapacitated.
In addition, a special rule applies for married couples: If your spouse is named as your agent in a power of attorney, that power terminates as soon as a divorce petition is filed, unless the document itself provides otherwise. The filing of the petition is the triggering event. The divorce does not need to be finalized for the power of attorney to be terminated.
Finally, if a court proceeding for appointment of a guardian for the principal is initiated, an agent’s power may be suspended, depending on the terms of the power of attorney and the court’s actions in the guardianship proceeding.
Talk With Our BRMM Lawyers About Your Michigan and Florida Powers of Attorney
Your powers of attorney go to the very heart of your well-being, because they give another person the authority to make decisions about your healthcare and finances. Using a so-called “form” or DIY (Do-It-Yourself) service is never a good idea, because the documents will not reflect your specific wishes and situation. The only way to ensure that your powers of attorney are fully valid and effective in Michigan and Florida is to consult an attorney knowledgeable in the laws of both states, who can tailor the documents to reflect your wishes.
Our experienced estate planning attorneys at BRMM are here to answer all your questions about Michigan and Florida powers of attorney and discuss other legal issues that arise when you spend time or have interests in both states. We are located in Troy, Michigan, and serve clients throughout the Tri County and Detroit area, as well as in other parts of Michigan. Call us at (248) 213-9514 or complete our online form to set up your free consultation.