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Pending marriage termination ends spouse's DPOA power

8-12-2012 - According to recent changes in Florida Statute 709.2109, a person named as agent under his/her spouse's Florida Durable Power of Attorney for Property loses legal authority to act on the spouse's behalf in the event of divorce or annulment, or when an action is filed for divorce or legal separation. The only exception is if the Durable Power of Attorney specifically states otherwise - i.e., that the agents's powers continue even under these circumstances. Although the new law became effective Oct. 1, 2011, it applies to every Florida Durable Power of Attorney regardless of the date the document was executed.

A principal who is divorced, or for whom a divorce, annulment, or legal separation is pending, should take additional steps to ensure that an unsuspecting third party such as a bank or brokerage does not permit the spouse (or ex-spouse) to handle the principal's affairs. The Durable Power of Attorney should be formally revoked; the revocation should be recorded on public record; and copies should be served on all of the principal's financial institutions. Destroying the original Durable Power of Attorney is not sufficient.

These additional steps are particularly critical for someone whose Durable Power of Attorney was executed on or after October 1, 2011.  In the case of these instruments, a photocopy is considered as valid as the original in the eyes of Florida law. Therefore, it much easier for an unauthorized spouse or ex-spouse to  inappropriately act by presenting a photocopy to a financial institution.

Note: Florida Statute 765.104, the law governing the Florida Health Care Power of Attorney, has not changed. Once a dissolution of marriage has occurred, a person authorized to act as health care agent under his/herspouse's Health Care Power of Attorney no longer has that authority. However, a pending dissolution or annulment of marriage does not terminate the spouse's authority. Therefore, if you are in the process of divorcing and your Health Care Power of Attorney names your spouse as your health care agent, you will have to formally revoke your Health Care Power of Attorney in order to terminate your spouse's ability to make health care decisions on your behalf.

For assistance, please contact our estate planning attorneys.

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