Co-Agents’ Duties And Liabilities Under A Durable Power Of Attorney

By: David M. Garten, Esq.

ARTICLE:  Co-Agents’ Duties And Liabilities Under A Durable Power Of Attorney

In Rosenkrantz v. Feit, 2011 Fla. App. LEXIS 19915 (Fla. 3^rd DCA 12/14/11), sister brought a declaratory judgment action against her brother/co-agent[1] under their mother's durable power of attorney. [2] Sister sought a declaration of her rights as a co-agent and an accounting.  Sister alleged that she was unable to issue subpoenas to her mother's bank to obtain bank account information, but could not issue the subpoenas, or obtain this information, without her brother's concurrence which he refused to give. She alleged that her brother was not fulfilling his fiduciary role and refused fully to account for their mother's assets. Sister sought declaratory relief to determine: 1) the extent to which she could act without the

Proper Use Of Gifting Powers Under A Durable Power Of Attorney

By: David M. Garten, Esq.

Proper Use Of Gifting Powers Under A Durable Power Of Attorney

Chapter 709 entitled “Powers Of Attorney And Similar Instruments” (effective October 1, 2011) reads in relevant part:

709.2202 Authority that requires separate signed enumeration.—

 (1) Notwithstanding s. 709.2201, 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 under s. 709.2114, and the exercise is not otherwise prohibited by another agreement or instrument:

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  (c) Make a gift, subject to subsection (3);

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 (2) Notwithstanding a grant of authority to do an act described in subsection (1), unless the power of attorney otherwise provides, an agent  who is not an ancestor, spouse, or descendant of the principal may