Power of Attorney (Alabama/Florida)

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Power of Attorney: State Considerations (Alabama)

In Alabama, a power of attorney (“POA”) executed on or after January 1, 2012 is governed by the Alabama Uniform Power of Attorney Act (“the Act”), found at Ala. Code § 26-1a-101 et seq. The Act is prospective only, so powers of attorney executed prior to January 1, 2012 are governed by the prior statute, Ala. Code § 26-1-2, and the common law.

Exceptions to the Act

The Act does not apply to (i) a power coupled with an interest in the subject of the power, such as a power given to a creditor in connection with a credit transaction, (ii) a proxy or other delegation of voting rights with respect to an entity, or (iii) a power created on a form prescribed by a governmental agency for a governmental purpose.

Extent

POA’s can be as broad or as limited as the principal (the person for whom the attorney-in-fact is acting) determines.  Some examples of what an attorney-in-fact could do for the principal would be to open/close accounts in the member’s name, withdraw funds, endorse and cash checks, and remove items from a member’s safe deposit box.  The Act provides a laundry list of powers that can be granted and a form POA in which the principal may choose what powers to grant.  Ala. Code § 26-1A-301.

Obligation when Presented with POA

A credit union has no obligation to accept or honor a POA that has not been acknowledged before a notary public.  One who refuses to honor a properly acknowledged POA is subject to (i) a court order requiring him to do so, and (ii) liability for attorney’s fees and costs incurred in taking the issue to court. Liability only arises, however, if the person would be required to affect the transaction with the principal if the principal were present and competent to act on his own behalf. Ala. Code § 26-1a-120.

“Durable” Power of Attorney
When a POA provides that it will not be affected by the principal’s disability, it is a “durable” POA. Under the Act, all POAs executed after January 1, 2012 are presumed to be durable.  Ala. Code § 26-1a-104.

“Springing” Power of Attorney

A POA is effective when signed, unless the POA provides that it will not take effect until a specific event, commonly referred to as a springing POA.  If the event is the principal’s incompetence or disability, springing POA’s require a determination by at least one physician that the person is disabled or incompetent.  Issues to consider when presented with springing POA’s are whether the member’s disability is permanent and if the agent may be required to establish that the principal’s disability still exists at a specified time.

Termination

A POA terminates when the principal dies, becomes incapacitated (if the POA is not presumed durable), the principal revokes the POA, the POA provides that it terminates, the purpose of the POA is accomplished, the principal revokes the agent’s authority, or the POA is revoked by a fiduciary appointed by a court.  Ala. Code § 26-1A-110(a).

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Power of Attorney: State Considerations (Florida)

The Florida Power of Attorney Act is found at Fla. Stat. § 709.2101 et seq.  A power of attorney must be signed by the principal and by two subscribing witnesses and be acknowledged by the principal before a notary public

Extent
POA’s can be as broad or as limited as the principal (the person for whom the attorney-in-fact is acting) determines.  Some examples of what an attorney-in-fact could do for the principal would be to open/close accounts in the member’s name, withdraw funds, endorse and cash checks, and remove items from a member’s safe deposit box.  However, an agent may only exercise authority specifically granted to the agent in the POA and any authority reasonably necessary to give effect to that express grant of specific authority.  Fla. Stat. § 709.2201(1).

Under Fla. Stat. § 709.2202(1), an agent may exercise the following authority only if the principal signed or initialed next to each specific enumeration of the authority, the exercise of the authority is consistent with the agent’s duties, and the exercise is not otherwise prohibited by another agreement or instrument:

(a) Create an inter vivos trust;

(b) With respect to a trust created by or on behalf of the principal, amend, modify, revoke, or terminate the trust, but only if the trust instrument explicitly provides for amendment, modification, revocation, or termination by the settlor’s agent;

(c) Make a gift;

(d) Create or change rights of survivorship;

(e) Create or change a beneficiary designation;

(f) Waive the principal’s right to be a beneficiary of a joint and survivor annuity, including a survivor benefit under a retirement plan; or

(g) Disclaim property and powers of appointment.

Obligation when Presented with POA
A third person who is requested to accept a POA that appears to be executed in accordance with this section may, in good faith, request, and rely upon, among other things, an opinion of counsel as to any matter of law concerning the POA.  Fla. Stat. § 709.2119(3).  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. Fla. Stat. § 709.2119(5).

When one unreasonably refuses to allow an agent to act pursuant to the POA, a court shall award reasonable attorney fees and costs as in chancery actions.  Fla. Stat. § 709.2116(3).

“Durable” Power of Attorney
Under the Act, a POA is durable if it contains the following words: “This durable power of attorney is not terminated by subsequent incapacity of the principal except as provided in chapter 709, Florida Statutes,” or similar words that show the principal’s intent that the authority conferred is exercisable notwithstanding the principal’s subsequent incapacity.  Fla. Stat. § 709.2104.

“Springing” Power of Attorney
A power of attorney that becomes effective at a future date, or upon the occurrence of a future event or contingency (a “springing Power of Attorney) is not legally effective in Florida. There are 2 exceptions to this prohibition:

• Military Powers of Attorney may be springing.
• A Power of Attorney executed prior to October 1, 2011that is conditions on the principal’s lack of capacity and the Power of Attorney has not become exercisable before October 1, 2011may be accepted if an affidavit is provided by an osteopathic physician stating that the physical is responsible for the treatment of the principal and that the principal lacks the capacity to manage property.
  Florida Code 709.2108

If a POA was executed before October 1, 2011, and is conditioned on the principal’s lack of capacity, and the POA has not become exercisable before that date, the POA is exercisable upon the delivery of the affidavit of a physician who has primary responsibility for the treatment and care of the principal and who is licensed to practice medicine or osteopathic medicine.    Fla. Stat. § 709.2108(2). 

Termination
A POA terminates when the principal dies, becomes incapacitated (if the POA is not durable), the principal is adjudicated totally or partially incapacitated by a court, the principal revokes the POA, the POA provides that it terminates, the purpose of the POA is accomplished, or the agent’s authority terminates.  Fla. Stat. § 709.2109(1). 

Revocation
A principal may revoke a POA by expressing the revocation in a subsequently executed POA or other writing signed by the principal.  Fla. Stat. § 709.2110(1).

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Power of Attorney (Alabama/Florida): Laws & Regulations

Laws & Regulations (Alabama)

• The Code of Alabama
  • Ala. Code § 26-1a-101

Laws & Regulations (Florida)

• Florida Power of Attorney Act