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CSA TRAVEL INFORMATION GUIDE
the original probate court. Thus, the Florida property is put into a situation whereby it can be legally
handled by the executors.
A word of caution is appropriate to those persons who have remarried or married for the first time in
whatever circumstances. A will that has been made prior to the marriage is no longer valid, and the
deceased will be considered to have died without a will. The only exception is if the will was made in
contemplation of the particular marriage. One can imagine a situation in which a separate will was
prepared regarding Florida property, the person marries, and forgets to do a new will regarding the
Florida property. That person’s intentions concerning the disposition of the Florida property would be
completely frustrated.
Powers of Attorney
While a will made in Ontario, or in any other jurisdiction, which disposes of all of one’s property
would be sufficient to encompass property or assets in Florida, the subject of a “power of attorney” is
completely different.
The laws of Florida (and possibly other states) are very specific as to what is required to create a
valid power of attorney which will be recognized in Florida. The bottom line – a person wishing to
create a power of attorney for use in Florida should consult a Florida attorney to have it prepared
and explained. A lawyer in Ontario, for instance, is not qualified to advise on such a subject. His/her
advice to a client should be “see a Florida lawyer”.
To be effective, the document must be executed with the same formalities as are required for a
conveyance of real property by Florida law. This means that the document must be witnessed by
two persons and must be sworn before a notary public. There are certain Florida rules as to who the
witnesses can be, and who can act as a notary public in the situation. Another requirement is that
the document MUST contain words, “This durable power of attorney is not affected by subsequent
incapacity of the principal except as provided by s.709.08, Florida Statutes,” or similar words that
show the principal’s intent that the authority conferred is exercised notwithstanding the principal’s
subsequent incapacity, except as otherwise provided by this section. What in the world are we
talking about?
There are also rules as to who can serve (is named in the document) as the attorney. The person must
be 18 years of age or older and be of sound mind. Many people have their trust companies as their
representatives but, to be a proper representative of a Florida power of attorney, the trust company
must have a place of business in Florida, and be authorized to conduct trust business in the state.
There are many more rules that apply to this particular exercise. Rather than waste your money by
purchasing a do-it-yourself kit or paying someone without the proper credentials and ending up with
a piece of paper that is useless, engage a Florida lawyer the next time you are in Florida, to prepare
a proper document for you that will satisfy your wishes. As with buying insurance and failing to
disclose all the facts (and therefore paying a premium for protection that is not there), do not spend
your money on a document that will not be effective when you need it. Engage a legal practitioner in
Florida (or wherever you reside in the United States) who is qualified to do the job. Then, you will get
value for your money.
Wallace Weylie
CSA General Counsel
Licensed by the Law Society of Upper Canada (Ontario) and the Florida Bar