Power of Attorney Abuse in Florida: What the Estate Inherits
The call comes about four months after the funeral. You handled the mother’s planning years ago, and her daughter is on the phone asking whether your file still holds a copy of the power of attorney her brother signed. He served as agent for the last three years of their mother’s life, and when the daughter finally obtained the bank statements she found a little over $400,000 leaving the accounts across that period, along with a transfer that moved the rental property in Florida into his name.
She has reached you because you are the person she associates with her mother’s affairs, and because she has no idea who else would know what any of this means. Her questions are whether anything can still be done about it and whether her family can afford to find out.
Both answers tend to be more favorable than families expect, and they rest on a feature of Florida’s power of attorney statute that comes up rarely enough that many practitioners have never had occasion to use it.
The Claim Passes to the Estate
A durable power of attorney terminates on the principal’s death, and the agent’s authority to act terminates with it. The duties the agent owed during the agency operate differently. Chapter 709 required the brother to act within the scope of the authority the instrument granted, in good faith and in his mother’s interest, and to keep records of what he did on her behalf. Any breach of those duties gave rise to a claim that belonged to his mother while she was living, and that claim survives her, passing to the decedent’s estate for the personal representative to pursue.
The practical consequence is a sequencing one that families rarely understand on their own. The estate typically has to be opened, and a personal representative appointed, before anyone is in a position to bring the claim at all. Matters of this kind often sit dormant for months simply because nobody has explained that order of operations to the family.
Who Carries the Burden
Section 709.2116 gives a court considerable latitude in proceedings concerning a power of attorney, including authority to review the agent’s conduct, to construe or enforce the instrument, and to grant other appropriate relief, and it addresses the award of reasonable attorney fees and costs in those proceedings.
The subsection that shapes the posture of these cases is the one addressing conflicts of interest. Where an agent’s exercise of a power is challenged on the ground that it was affected by a conflict, and evidence is presented that the agent or an affiliate held a personal interest in that exercise, the statute shifts the burden onto the agent to establish by clear and convincing evidence that he acted properly, with a narrow alternative available where the instrument expressly authorized the conflict.
Retitling his mother’s rental property in his own name is, on its face, an exercise of authority in which he held a personal interest, which leaves him to account for the transaction under a demanding standard of proof.
Where Timing Affects the Outcome
Recovery is most realistic while the assets remain identifiable, which is to say while property still sits titled in the agent’s name, while an account remains frozen, or while funds have neither been spent nor moved somewhere they become difficult to follow. Matters that reach counsel within roughly a year of the date of death frequently sit in that posture, and particular facts can extend the window considerably, especially where real property has not since changed hands.
For Elder Law Attorneys
Families in this position reach you at a moment when they have no representation, no open estate, and no sense of what litigation of this kind would cost them. Referring the matter asks nothing of you beyond the call itself, and involves no role for you in the litigation that follows. When a family comes to you after a client’s death with transfers they cannot explain and no means of funding an hourly investigation, hand them over to us. Referral fees up to 25 percent.
For Families and Beneficiaries
If someone served as power of attorney for your parent and moved money or property to themselves during that time, Florida law may require that person to justify each of those transactions to a court under a demanding standard of proof. The claim generally belongs to your parent’s estate, so the first step is usually opening or reviewing the probate. We handle these matters on a contingent-fee basis and advance the costs of the litigation, which means your family pays nothing while the case is pending and owes no fee unless we recover. Contact our office and we will review the transfers with you.
Power of Attorney Abuse in Florida: What the Estate Inherits
The call comes about four months after the funeral. You handled the mother’s planning years ago, and her daughter is on the phone asking whether your file still holds a copy of the power of attorney her brother signed. He served as agent for the last three years of their mother’s life, and when the daughter finally obtained the bank statements she found a little over $400,000 leaving the accounts across that period, along with a transfer that moved the rental property in Florida into his name.
She has reached you because you are the person she associates with her mother’s affairs, and because she has no idea who else would know what any of this means. Her questions are whether anything can still be done about it and whether her family can afford to find out.
Both answers tend to be more favorable than families expect, and they rest on a feature of Florida’s power of attorney statute that comes up rarely enough that many practitioners have never had occasion to use it.
The Claim Passes to the Estate
A durable power of attorney terminates on the principal’s death, and the agent’s authority to act terminates with it. The duties the agent owed during the agency operate differently. Chapter 709 required the brother to act within the scope of the authority the instrument granted, in good faith and in his mother’s interest, and to keep records of what he did on her behalf. Any breach of those duties gave rise to a claim that belonged to his mother while she was living, and that claim survives her, passing to the decedent’s estate for the personal representative to pursue.
The practical consequence is a sequencing one that families rarely understand on their own. The estate typically has to be opened, and a personal representative appointed, before anyone is in a position to bring the claim at all. Matters of this kind often sit dormant for months simply because nobody has explained that order of operations to the family.
Who Carries the Burden
Section 709.2116 gives a court considerable latitude in proceedings concerning a power of attorney, including authority to review the agent’s conduct, to construe or enforce the instrument, and to grant other appropriate relief, and it addresses the award of reasonable attorney fees and costs in those proceedings.
The subsection that shapes the posture of these cases is the one addressing conflicts of interest. Where an agent’s exercise of a power is challenged on the ground that it was affected by a conflict, and evidence is presented that the agent or an affiliate held a personal interest in that exercise, the statute shifts the burden onto the agent to establish by clear and convincing evidence that he acted properly, with a narrow alternative available where the instrument expressly authorized the conflict.
Retitling his mother’s rental property in his own name is, on its face, an exercise of authority in which he held a personal interest, which leaves him to account for the transaction under a demanding standard of proof.
Where Timing Affects the Outcome
Recovery is most realistic while the assets remain identifiable, which is to say while property still sits titled in the agent’s name, while an account remains frozen, or while funds have neither been spent nor moved somewhere they become difficult to follow. Matters that reach counsel within roughly a year of the date of death frequently sit in that posture, and particular facts can extend the window considerably, especially where real property has not since changed hands.
For Elder Law Attorneys
Families in this position reach you at a moment when they have no representation, no open estate, and no sense of what litigation of this kind would cost them. Referring the matter asks nothing of you beyond the call itself, and involves no role for you in the litigation that follows. When a family comes to you after a client’s death with transfers they cannot explain and no means of funding an hourly investigation, hand them over to us. Referral fees up to 25 percent.
For Families and Beneficiaries
If someone served as power of attorney for your parent and moved money or property to themselves during that time, Florida law may require that person to justify each of those transactions to a court under a demanding standard of proof. The claim generally belongs to your parent’s estate, so the first step is usually opening or reviewing the probate. We handle these matters on a contingent-fee basis and advance the costs of the litigation, which means your family pays nothing while the case is pending and owes no fee unless we recover. Contact our office and we will review the transfers with you.