After Florida rewrote its Power of Attorney Act in 2011, are military springing powers of attorney made under 10 U.S.C. 1044b still valid in Florida?

Plain-English summary

A power of attorney lets one person act legally on another's behalf. Servicemembers often use a "springing" or deployment-contingent power of attorney, prepared in advance, that becomes effective when the member deploys. Federal law (10 U.S.C. section 1044b) makes military powers of attorney exempt from state requirements of form or formality and requires states to give them the same legal effect as a power of attorney prepared under that state's own law. When Florida overhauled its Power of Attorney Act in 2011, the Office of Legal Policy at the Under Secretary of Defense grew concerned that the new statute might quietly narrow the kinds of military powers of attorney Florida would accept, and asked Attorney General Pam Bondi.

The AG reassured the Department of Defense. The new military provision has two sentences: the first recognizes the broad federal rule validating military powers of attorney executed under 10 U.S.C. section 1044b, and the second restates that a deployment-contingent power of attorney, signed in advance and effective on deployment, gets full force and effect in Florida courts. The AG concluded the second sentence does not cut back the first. The deployment-contingent language had previously lived in a separate, stand-alone statute, and the 2011 rewrite simply pulled it into the same subsection alongside the broader federal-recognition language. Nothing in the legislative history suggested any intent to limit the first sentence. Because not every military power of attorney is deployment-contingent, the AG read the statute to keep all springing and other military powers of attorney executed under section 1044b valid in Florida.

Currency note

This opinion was issued in 2012. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Florida's Power of Attorney Act (Part II, Chapter 709) and the related statute numbers may have been amended since 2012, and the source opinion itself contains inconsistent internal references to the subsection numbers (709.2108 and 709.2106(4)). Confirm the current statutory text and section numbers before relying on this analysis.

Common questions

Q: Does Florida still accept military springing powers of attorney after the 2011 rewrite?
A: Yes. The AG concluded that all springing military powers of attorney executed under 10 U.S.C. section 1044b continue to be accepted in Florida, and that the deployment-contingent sentence did not narrow that broader rule.

Q: What is a deployment-contingent power of attorney?
A: One a servicemember signs in advance that becomes effective upon deployment. Florida law expressly gives such a power of attorney full force and effect in the state's courts.

Q: Are all military powers of attorney deployment-contingent?
A: No. The AG noted that not every military power of attorney is tied to deployment, which is part of why the broader first-sentence recognition of section 1044b powers mattered: it covers military powers of attorney that are not deployment-contingent.

Q: What does the federal statute, 10 U.S.C. 1044b, do?
A: It exempts military powers of attorney from state-law requirements of form, substance, formality, or recording, and requires that they be given the same legal effect as a power of attorney prepared under the relevant state's law.

Background and statutory framework

Florida's Power of Attorney Act, Part II of Chapter 709, was substantially rewritten by Chapter 2011-210, Laws of Florida (CS/SB 670). The revision generally made powers of attorney effective on execution and limited future-effective ("springing") powers, with exceptions for military powers of attorney. The military exception recognizes that a military power of attorney is valid if executed under 10 U.S.C. section 1044b, and that a deployment-contingent power of attorney may be signed in advance, becomes effective on deployment, and must be given full force and effect by Florida courts.

The deployment-contingent language had previously appeared as a stand-alone provision (former section 709.11, Florida Statutes (2010)). The 2011 act consolidated it with language modeled on the Uniform Power of Attorney Act recognizing out-of-state powers of attorney that comply with the military power-of-attorney requirements of 10 U.S.C. section 1044b. The AG read that consolidation as housekeeping, not a substantive limitation.

Citations and references

Statutes and session laws:

• s. 709.2108, Fla. Stat. (when a power of attorney becomes effective; springing-power limits)
• s. 709.2106(4), Fla. Stat. (validity of military and deployment-contingent powers of attorney)
• Part II, Ch. 709, Fla. Stat. (Florida Power of Attorney Act)
• 10 U.S.C. s. 1044b (federal recognition of military powers of attorney)
• Ch. 2011-210, Laws of Fla. (2011 revision of the Power of Attorney Act)

Source

• Landing page: https://www.myfloridalegal.com/ag-opinions/military-power-of-attorney-act
• Original PDF: https://www.myfloridalegal.com/print/pdf/node/1628

Original opinion text

Colonel Paul E. Kantwill, U.S. Army

Office of the Under Secretary of Defense

Office of Legal Policy

4000 Defense Pentagon

Washington, D.C. 20301-4000

RE: POWERS OF ATTORNEY – MILITARY – effect of changes to Florida's Power of Attorney Act on validity of military springing powers of attorney. s. 709.2108, Fla. Stat.; 10 U.S.C. s. 1044b.

Dear Col. Kantwill:

The Office of Legal Policy, Under Secretary of Defense, Personnel and Readiness, has asked for this office's opinion on substantially the following question:

Does the second sentence of section 709.2108(3), Florida Statutes, limit the first sentence or will all "springing" powers of attorney prepared pursuant to 10 U.S.C. section 1044b[1] continue to be accepted in Florida?

In sum:

The second sentence of section 709.2108(4), Florida Statutes, does not limit the first sentence of that statute and all "springing" powers of attorney prepared pursuant to 10 U.S.C. section 1044b will continue to be accepted in Florida.

Florida's Power of Attorney Act, Part II, Chapter 709, Florida Statutes, was substantially amended during the 2011 Legislative Session.[2] As described in the final bill analysis for Chapter 2011-210, Laws of Florida,

"A power of attorney is a legal document in which a principal authorizes a person or entity (the agent or attorney-in-fact) to act on his or her behalf. There are three basic types of power of attorney: general power of attorney, which ceases when the principal becomes incapacitated; durable power of attorney, which continues once the person becomes incapacitated; and springing or contingent power of attorney, which power of attorney becomes effective upon the occurrence of a specified event."[3]

The bill was a comprehensive revision of the statutes that regulate powers of attorney in the State of Florida.[4]

Among the provisions of Part II, Chapter 709, Florida Statutes, as rewritten, is section 709.2108, Florida Statutes, providing that all powers of attorney become effective upon execution, with the exception of powers of attorney based on military deployment. Subsection (3) of this statute provides that a power of attorney that is to become effective at a future date or upon the occurrence of a future event or contingency is ineffective with limited exceptions. The exceptions to this provision include those expressed in section 709.2106(4), Florida Statutes, which states that:

"A military power of attorney[5] is valid if it is executed in accordance with 10 U.S.C. s. 1044b, as amended.[6] A deployment-contingent power of attorney may be signed in advance, is effective upon the deployment of the principal, and shall be afforded full force and effect by the courts of this state."

The first sentence of this statute is a legislative acknowledgment of the broad language of the federal provisions relating to military powers of attorney and the second sentence reiterates that deployment-contingent powers of attorney continue to be valid in Florida.

The language contained in the second sentence of section 709.2106(4), Florida Statutes, to the effect that a deployment-contingent power of attorney shall be afforded full force and effect in Florida courts was previously contained in section 709.11, Florida Statutes (2010), as an independent, stand-alone statute. The amendment of Part II, Chapter 709, by CS/SB 670, Florida 2011 Legislative Session, appears to have taken the language previously existing in section 709.11, Florida Statutes (2010), and added the language existing in the Uniform Power of Attorney Act which provides that a power of attorney executed other than in Florida is valid in this state if the execution of the power of attorney complied with the requirements for a military power of attorney pursuant to 10 U.S.C. section 1044b.[7] Nothing contained in the legislative history of CS/SB 670, Florida 2011 Legislative Session, suggests that the Legislature intended that the second sentence of section 709.2106(4), Florida Statutes, would in any way limit application or construction of the first sentence.[8]

Based upon a review of the legislative history for Chapter 2011-210, Laws of Florida, it appears that the inclusion of the second sentence of this statute merely represents a consolidation of references to military powers of attorney into one statutory subsection and not a limitation on the provision expressed in the first sentence. Not all military powers of attorney may be deployment-contingent and the Florida Legislature intended to affirm the continued validity in this state's courts of deployment-contingent powers of attorney as well as other military powers of attorney executed in accordance with 10 U.S.C. section 1044b.

In sum, it is my opinion that the second sentence of section 709.2108(3), Florida Statutes, does not limit the first sentence of that statute and all "springing" powers of attorney prepared pursuant to 10 U.S.C. section 1044b will continue to be accepted in Florida.

Sincerely,

Pam Bondi

Attorney General

PB/tgh

[1] 10 U.S.C. s. 1044b provides that military powers of attorney are exempt from any requirements of form, substance, formality, or recording that is provided for powers of attorney under the laws of any State and must be given the same legal effect as a power of attorney prepared and executed as required by the laws of that State.

[2] See Ch. 2011-210, Laws of Fla.

[3] See Final Bill Analysis, CS/SB 670, Florida 2011 Legislative Session, May 4, 2011.

[4] Id.

[5] A "military power of attorney" is defined in 10 U.S.C.A. s. 1044b as "any general or special power of attorney that is notarized in accordance with section 1044a of this title or other applicable State or Federal law."

[6] See n.1 supra.

[7] See s. 106(c)(2), Uniform Power of Attorney Act, drafted by the National Conference of Commissioners on Uniform State Laws (2006).

[8] See Final Bill Analysis, CS/SB 670, Florida 2011 Legislative Session, and Bill Analysis and Fiscal Impact Statement on CS/SB 670, dated April 1, 2011, The Florida Senate 2011 Session; audio podcasts of committee hearings of Florida Senate considering CS/SB 670: Judiciary Committee hearing of 03/14/11; Banking and Insurance Committee hearing of 03/29/11, and Rules Committee hearing of 04/05/11.