Maryland seniors may want to think about updating their estate plan before retiring in the Sunshine State, due to Florida’s Power of Attorney Act.
Recent estate law changes in Florida may prevent power of attorney documents from “springing” into action.
A Springing Power of Attorney is a type of Power of Attorney that is intended to take effect at a later date or upon the occurrence of a future event such as incapacity. The language in springing powers of attorney may have to be very specific regarding exactly what conditions or events must occur before the document becomes effective.
Medical certification is another common feature of springing powers of attorney. A doctor must verify that the principal has become incapacitated before the document springs into effect. Requiring a doctor’s certification of incapacity can pose a problem. Doctors are expected to be impartial and provide unbiased opinions, however litigation concerning the factual basis of doctors’ opinions became so common that a change was needed.
As of October 1, 2011 the Florida Power of Attorney Act disallowed springing powers of attorney from being created in Florida. The law applies to any power of attorney document which becomes effective at a future date or upon future conditions. The only exception is for powers of attorney contingent on military deployment. Springing powers of attorney executed prior to October 1, 2011 are grandfathered in, but to be effective must have an affidavit of the principal’s duly licensed primary care doctor verifying incapacity.
Valid powers of attorney in Florida are those that go into effect immediately upon signing. This type of estate planning document may divest the principal of complete control while they are still competent, highlighting the importance of choosing a trusted individual as an agent.
It is important to remember that the much publicized “Schiavo vs. Schiavo” case originated in Florida. This controversial case had broad reaching effects on the state’s laws regarding estate planning and probate.
Famous for its warm weather and beaches, the Sunshine State can be an excellent place for Maryland retirees to hang their hats. However, it may be necessary to revisit estate planning documents such as a power of attorney to ensure they work as planned.
For more information about estate planning documents, including a Power of Attorney, please contact Mariela C. D’Alessio at Bodie.