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The Florida Statutes

The 2018 Florida Statutes

Title XL
REAL AND PERSONAL PROPERTY
Chapter 709
POWERS OF ATTORNEY AND SIMILAR INSTRUMENTS
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F.S. 709.2119
709.2119 Acceptance of and reliance upon power of attorney.
(1)(a) A third person who in good faith accepts a power of attorney that appears to be executed in the manner required by law at the time of its execution may rely upon the power of attorney and the actions of the agent which are reasonably within the scope of the agent’s authority and may enforce any obligation created by the actions of the agent as if:
1. The power of attorney were genuine, valid, and still in effect;
2. The agent’s authority were genuine, valid, and still in effect; and
3. The authority of the officer executing for or on behalf of a financial institution that has trust powers and acting as agent is genuine, valid, and still in effect.
(b) For purposes of this subsection, and without limiting what constitutes good faith, a third person does not accept a power of attorney in good faith if the third person has notice that:
1. The power of attorney is void, invalid, or terminated; or
2. The purported agent’s authority is void, invalid, suspended, or terminated.
(2) A third person may require:
(a) An agent to execute an affidavit stating where the principal is domiciled; that the principal is not deceased; that there has been no revocation, or partial or complete termination by adjudication of incapacity or by the occurrence of an event referenced in the power of attorney; that there has been no suspension by initiation of proceedings to determine incapacity, or to appoint a guardian, of the principal; that the agent’s authority has not been terminated by the filing of an action for dissolution or annulment of marriage or legal separation of the agent and principal; and, if the affiant is a successor agent, the reasons for the unavailability of the predecessor agents, if any, at the time the authority is exercised.
(b) An officer of a financial institution acting as agent to execute a separate affidavit, or include in the form of the affidavit, the officer’s title and a statement that the officer has full authority to perform all acts and enter into all transactions authorized by the power of attorney for and on behalf of the financial institution in its capacity as agent.
(c) A written affidavit executed by the agent under this subsection may, but need not, be in the following form:

STATE OF   

COUNTY OF   

Before me, the undersigned authority, personally appeared   (agent)   (“Affiant”), who swore or affirmed that:

1. Affiant is the agent named in the Power of Attorney executed by   (principal)   (“Principal”) on   (date)  .
2. This Power of Attorney is currently exercisable by Affiant. The principal is domiciled in   (insert name of state, territory, or foreign country)  .
3. To the best of Affiant’s knowledge after diligent search and inquiry:
a. The Principal is not deceased;
b. Affiant’s authority has not been suspended by initiation of proceedings to determine incapacity or to appoint a guardian or a guardian advocate;
c. Affiant’s authority has not been terminated by the filing of an action for dissolution or annulment of Affiant’s marriage to the principal, or their legal separation; and
d. There has been no revocation, or partial or complete termination, of the power of attorney or of Affiant’s authority.
4. Affiant is acting within the scope of authority granted in the power of attorney.
5. Affiant is the successor to   (insert name of predecessor agent)  , who has resigned, died, become incapacitated, is no longer qualified to serve, has declined to serve as agent, or is otherwise unable to act, if applicable.
6. Affiant agrees not to exercise any powers granted by the Power of Attorney if Affiant attains knowledge that the power of attorney has been revoked, has been partially or completely terminated or suspended, or is no longer valid because of the death or adjudication of incapacity of the Principal.

    

  (Affiant)  

Sworn to (or affirmed) and subscribed before me this   day of   (month)  ,   (year)  , by   (name of person making statement)  

  (Signature of Notary Public-State of Florida)  

  (Print, Type, or Stamp Commissioned Name of Notary Public)  

Personally Known OR Produced Identification

  (Type of Identification Produced)  

(3) A third person who is asked to accept a power of attorney that appears to be executed in accordance with s. 709.2105 may in good faith request, and rely upon, without further investigation:
(a) A certified English translation of the power of attorney if the power of attorney contains, in whole or in part, language other than English;
(b) An opinion of counsel as to any matter of law concerning the power of attorney if the third person making the request provides in a writing or other record the reason for the request; or
(c) The affidavit described in subsection (2).
(4) An English translation or an opinion of counsel requested under this section must be provided at the principal’s expense unless the request is made after the time specified in s. 709.2120(1) for acceptance or rejection of the power of attorney.
(5) Third persons who act in reliance upon the authority granted to an agent and in accordance with the instructions of the agent shall be held harmless by the principal from any loss suffered or liability incurred as a result of actions taken before the receipt of notice as provided in s. 709.2121. A third person who acts in good faith upon any representation, direction, decision, or act of the agent is not liable to the principal or the principal’s estate, beneficiaries, or joint owners for those acts.
(6) The acts of an agent under a power of attorney are as valid and binding on the principal or the principal’s estate as if the principal were alive and competent if, in connection with any activity pertaining to hostilities in which the United States is then engaged, the principal is officially listed or reported by a branch of the United States Armed Forces in a missing status as defined in 37 U.S.C. s. 551 or 5 U.S.C. s. 5561, regardless of whether the principal is dead, alive, or incompetent. Homestead property held as tenants by the entireties may not be conveyed by a power of attorney regulated under this provision until 1 year after the first official report or listing of the principal as missing or missing in action. An affidavit of an officer of the Armed Forces having maintenance and control of the records pertaining to those missing or missing in action that the principal has been in that status for a given period is conclusive presumption of the fact.
History.s. 21, ch. 2011-210; s. 7, ch. 2013-90.