Florida Probate and Trust Litigation Blog

Florida’s Power of Attorney Act – Who Has Standing to Bring a Lawsuit for Breaching a Power of Attorney?

Proper standing is a critical issue for fiduciary litigation in Florida. In order for a person to bring a lawsuit relating to a power of attorney in Florida, they must first meet this threshold issue.

What is Standing?

Standing is a legal concept requiring a would-be litigant to demonstrate that he or she reasonably expects to be affected by the outcome of the proceedings, either directly or indirectly. Chandler v. City Of Greenacres, 140 So. 3d 1080, 1083 (Fla. 4th DCA 2014); Deutsche Bank Nat. Trust Co. v. Lippi, 78 So. 3d 81, 84 (Fla. 5th DCA 2012). In other words, the would-be litigant must show that he or she has a “sufficient stake in an otherwise justiciable controversy to obtain judicial resolution of that controversy.” Whitburn, LLC v. Wells Fargo Bank, N.A., 40 Fla. L. Weekly D2797 (Fla. 2d DCA Dec. 18, 2015); Brown v. Firestone, 382 So. 2d 654, 662 (Fla. 1980) (“[T]his Court has long been committed to the rule that a party does not possess standing to sue unless he or she can demonstrate a direct and articulable stake in the outcome of a controversy.”).

For standing, Florida requires that the party prosecuting the claim is the real party in interest or be expressly authorized by statute to bring the claim on behalf of the real party in interest. Rule 1.210 of the Florida Rules of Civil Procedure provides, in pertinent part, as follows:  

(a) Parties Generally. Every action may be prosecuted in the name of the real party in interest, but a personal representative, administrator, guardian, trustee of an express trust, a party with whom or in whose name a contract has been made for the benefit of another, or a party expressly authorized by statute may sue in that person's own name without joining the party for whose benefit the action is brought.

Fla. R. Civ. P. 1.210.

Who has standing to sue under Florida’s Power of Attorney Act?

In 2011, Florida adopted the Florida Power of Attorney Act, as Chapter 709, Florida Statutes. In doing so, the Legislature created a specific method for seeking judicial relief in Section 709.2116, Florida Statutes, which provides as follows:

(1) A court may construe or enforce a power of attorney, review the agent's conduct, terminate the agent's authority, remove the agent, and grant other appropriate relief.

(2) The following persons may petition the court:

(a) The principal or the agent, including any nominated successor agent.

(b) A guardian, conservator, trustee, or other fiduciary acting for the principal or the principal's estate.

(c) A person authorized to make health care decisions for the principal if the health care of the principal is affected by the actions of the agent.

(d) Any other interested person if the person demonstrates to the court's satisfaction that the person is interested in the welfare of the principal and has a good faith belief that the court's intervention is necessary.

(e) A governmental agency having regulatory authority to protect the welfare of the principal.

(f) A person asked to honor the power of attorney.

709.2116, Fla. Stat.

When the Legislature enacted Section 790.2116, it enumerated the individuals who have standing to seek judicial relief. It is well-settled that Florida follows the rule “expressio unius est exclusio alterius,” which means “express mention of one thing is the exclusion of another.” Dobbs v. Sea Isle Hotel, 56 So. 2d 341, 342 (Fla. 1952). “When the Legislature has prescribed the mode, that mode must be observed. When the controlling law directs how a thing shall be done that is, in effect, a prohibition against its being done in any other way.” Alsop v. Pierce, 19 So. 2d 799, 805-06 (Fla. 1944). The express authorization of the Legislature to specific persons, to the exclusion of the Attorney General, was purposeful.

It is interesting to note the subsection (d) provides a somewhat catchall provision for “any other interested person.” Although the Legislature does not expressly define a person interested in the welfare of the principal, the Uniform Power of Attorney Act (“UPOAA”) and the White Paper created by Real Property, Probate and Trust Law Section of the Florida Bar provides guidance. (If you would like to read the White Paper in full, can be located by clicking here.)

The comments to the corresponding UPOAA section, Section 116, states that, “the primary purpose of this section is to protect vulnerable or incapacitated principals against financial abuse.” Additionally, the White Paper on Chapter 709 gives express examples of the Legislature’s intent. The White Paper states, “A petition for judicial relief may be made by . . . any other interested person (such as the principal’s spouse, parent, or descendant) who demonstrates that they are interested in the principal’s welfare and have a good faith belief that intervention by the court is necessary.” Real Property, Probate and Trust Law Section of the Florida Bar, White Paper: Chapter 709, Fla. Stat. (2011) (emphasis added). Notably, no governmental agency is included in the examples; only actual persons.

A plain reading of the statute requires any person petitioning under subsection (d) to establish that, (1) they are an interested person, (2) they are interested in the principal’s welfare, and (3) they have a good faith belief that court intervention is necessary. Fla. Stat. § 709.2116(2)(d).

Being an “Interested Person” is a Threshold Requirement

Unlike most civil cases, proving that one is an “interested person” is a requirement before a petition can proceed. Wehrheim v. Golden Pond Assisted Living Facility, 905 So. 2d 1002, 1005-06 (Fla. 5th DCA 2005) (“[W]hether a person is an “interested person” is an element that must be established by the petitioner seeking revocation of probate and, although not specifically stated by rule, by a person seeking removal of a personal representative.”). Not surprisingly, the Probate Code’s statutory definition of “interested person” is virtually identical to the common law definition of standing—it means “any person who may reasonably be expected to be affected by the outcome of the particular proceeding involved.” § 731.201(23), Fla. Stat.

Contact Us:

PersanteZuroweste is a Florida law firm that handles varieties of fiduciary litigation including causes of action relating to Florida's Power of Attorney Act. If you believe that you may need legal assistance regarding a Florida litigation matter, please contact us at (727) 796-7666.

About PersanteZuroweste:

PersanteZuroweste has established a reputation as prominent trial lawyers serving clients throughout Florida. Our office is conveniently located to the Clearwater, St. Petersburg, and Tampa Bay communities.