What it means
Section 709.2104 says when a power of attorney is durable. It is durable if it contains the words “This durable power of attorney is not terminated by subsequent incapacity of the principal except as provided in chapter 709, Florida Statutes,” or similar words showing the principal’s intent that the authority conferred is exercisable notwithstanding the principal’s subsequent incapacity. The rule opens with “Except as otherwise provided under this part,” so other sections of the same part of chapter 709 can limit it.
Durability matters because of s. 709.2109(1)(b): a power of attorney that is not durable terminates when the principal becomes incapacitated. A durable power of attorney continues, although s. 709.2109(1)(c) provides that it terminates if a court adjudicates the principal totally or partially incapacitated, unless the court determines that certain authority is to remain exercisable by the agent.
- A power of attorney is durable if it contains the statutory sentence or similar words showing the principal's intent (§ 709.2104).
- The words must show that the authority is exercisable notwithstanding the principal's subsequent incapacity (§ 709.2104).
- A power of attorney that is not durable terminates when the principal becomes incapacitated (§ 709.2109(1)(b)).
- A court adjudication of incapacity terminates a power of attorney unless the court decides certain authority stays exercisable (§ 709.2109(1)(c)).
- Every power of attorney, durable or not, terminates when the principal dies (§ 709.2109(1)(a)).
Text of the statute (2026)
Except as otherwise provided under this part, a power of attorney is durable if it contains the words: “This durable power of attorney is not terminated by subsequent incapacity of the principal except as provided in chapter 709, Florida Statutes,” or similar words that show the principal’s intent that the authority conferred is exercisable notwithstanding the principal’s subsequent incapacity.
(a) The principal dies;
(b) The principal becomes incapacitated, if the power of attorney is not durable;
(c) The principal is adjudicated totally or partially incapacitated by a court, unless the court determines that certain authority granted by the power of attorney is to be exercisable by the agent;
Excerpts are the subsections the summary relies on. Read the full official text of § 709.2104.
History. s. 6, ch. 2011-210.
How it applies
Durability depends on the wording of the document. A document that includes the statutory sentence qualifies, and a document with different wording qualifies if its words show that the agent's authority continues after the principal becomes incapacitated. A document with no such words ends under s. 709.2109(1)(b) once the principal is incapacitated.
Durability does not extend past death. Under s. 709.2109(1)(a), a power of attorney terminates when the principal dies, so an agent has no authority under it after that point.
Where this shows up
Pages on this site where § 709.2104 does real work:
- When to update a Florida estate plan: marriage, divorce, a birth, a death, a move, new assets and incapacity, what Florida law changes automatically and which documents to review after each event
- Florida will checklist: who may make a will, signing and witness rules under section 732.502, the self-proving affidavit, and decisions on beneficiaries, personal representative, guardian and homestead
- Power of attorney in Florida: execution rules, durable language, agent powers, bank acceptance and revocation
- Rebecca Fierle
Questions people ask
Sources
- Florida Statutes (2026), s. 709.2104 (“a power of attorney is durable if it contains the words”)
- Florida Statutes (2026), s. 709.2109 (subsection (1)(a)-(c): termination on death, on incapacity if not durable, and on court adjudication of incapacity)
Last checked: October 17, 2026
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