Florida's Adoption of the Uniform Power of Attorney Act: Is It Sufficient to Protect Florida's Vulnerable Adults?

Article excerpt

INTRODUCTION
PART II
PART III
PART IV
CONCLUSION
Appendix A

INTRODUCTION

Fred was a widower who lived in Florida apart from any other family members. He had very little contact with his three children in recent years. His one son lived on the other coast of Florida and his two daughters lived out of state. He recently attended a seminar conducted by a financial advisor who recommended that he execute a durable power of attorney so that someone could pay his bills when he was unable. Fred lived on a limited fixed income and was unwilling to pay an attorney for a power of attorney. He visited the local library and used the free internet access to download a free power of attorney form. He completed the form, naming his son, Sam, as the agent because he lived the least distance from him. The form contained a line to check if Fred wanted Sam to have gift-giving authority. Fred checked the line, thinking he wished Sam to continue making the periodic gifts to his favorite local charity. Fred took the form to his local bank branch where two of the bank tellers witnessed and notarized his signature. Fred's assets consisted of his home and savings accounts containing approximately $200,000.

Shortly after he executed his power of attorney at the bank, Fred suffered a heart attack while at home. A neighbor found him and called an ambulance. The neighbor also saw the durable power of attorney on the counter and contacted Sam. Unbeknownst to Fred, Sam had lost his job and now supported himself through unemployment payments. Sam arrived and decided to move into Fred's home since Fred had a lengthy recovery ahead. Sam used the power of attorney to access Fred's bank accounts and pay Fred's bills. Sam also began using Fred's money for his own expenses. Fred's condition required twenty-four-hour care, so Sam placed him in a nursing home. Sam quickly used all of Fred's money on himself and even obtained a line of credit on Fred's home. When Fred died in the nursing home less than six months later, his two daughters were notified. The daughters produced a will Fred executed ten years ago, which included a residuary clause devising his property equally among his three children. Fred's two daughters are left trying to determine how their father's savings were spent.

Fred's son financially exploited his father. Financial exploitation is a form of elder abuse. (1) If a third party had detected the abuse during Fred's lifetime, options for protection and intervention could have included reporting the abuse to Adult Protective Services or petitioning for an emergency temporary guardianship. (2) Civil and criminal penalties were also available to punish the financial exploitation. (3) What options existed, however, for prevention or early detection of such abuse? Revisions to durable power of attorney laws seek to address the need for such options.

The National Conference of Commissioners on Uniform State Laws ("NCCUSL") approved the Uniform Power of Attorney Act ("UPOAA") (4) in 2006. (5) The Florida Bar Real Property, Probate and Trust Law Section created legislation to adopt the UPOAA, with modifications, "to update Florida's power of attorney law to reflect changes in the general law of agency, support portability of powers of attorney and provide additional protections for Florida citizens." (6) Florida adopted the UPOAA, with significant modifications, with the passage of Senate Bill 670 in the 2011 Florida legislative session. (7) This article evaluates the effectiveness of the Florida Power of Attorney Act ("Florida's Act") in providing additional protections for Florida residents executing a power of attorney, while maintaining the principal's autonomy. Part II provides the development and purposes of the UPOAA, which appealed to the drafters of the Florida Act. Part III details the benefits and limitations of the UPOAA and the Florida Act's modifications as related to the agent's duties, authorities, and liabilities. …