Liberty Life Assur. Co. of Boston v. Miller, 2007 WL 4233547 (S.D.Fla. Nov 29, 2007)
This case is helpful because it provides an example of a power-of-attorney (POA) that authorized the attorney in fact to change the named beneficiary of an insurance policy. All of the Florida cases I’ve written about lately involved POAs being used to take action NOT authorized by the instrument [click here, here, here, here].
So what does the POA have to say to authorize the attorney in fact to change an insurance policy beneficiary designation form? Glad you asked. Here’s your answer:
Construction of a durable power of attorney is a matter of law. Spoerr v. Manhattan Natl. Life Ins. Co., 2007 WL 128815 (S.D.Fla.2007). In construing a power of attorney the court must look at the language of the instrument in order to ascertain its object and purpose. Id. However, power of attorneys are strictly construed. Id. And, only the principal’s intent is considered when construing the power of attorney, not the agent’s intent. Kotsch v. Kotsch, 608 So.2d 879 (Fla.App. 2 Dist.1992).
First, the Decedent intended to give broad powers to Mrs. Miller as his attorney-in-fact. Under paragraph 4 of the power of attorney, labeled “No Limitation on Attorney-In-Fact’s Powers,” the Decedent states that he “intend [s] to give [his] Attorney-in-Fact the fullest powers possible, including all powers set forth in Florida Statute Section 709.08 as now in effect or hereafter enacted, and [he] [does] not intend, by the enumeration of [his] Attorney-in-Fact’s powers to limit or reduce them in any fashion.” (Durable Power of Att’y ¶ 4.) Here, the Decedent expressed his desire to relay to Mrs. Miller all the powers that he could possibly give her. ( Id.)
The Decedent specifically states that he intends to give her the full extent of powers under available pursuant to 709.08. ( Id.) Among the powers available pursuant to 709.08, is the power to “amend or modify any document or other disposition effective at the principal’s death.” § 709.08(7)(a). This power is only available if the decedent expressly authorized his attorney in fact, Mrs. Miller, to use that power. See § 709.08(7)(a). Therefore, the powers are available because he expressly states that he intends to give Mrs. Miller the full powers available under 709.08, (Durable Power of Att’y ¶ 4.), and the power to change beneficiaries under his insurance policy is one of the powers available under 709.08. § 709.08(7)(a).
Furthermore, under the section entitled “Management and Contracting Powers,” the Decedent expressly authorizes Mrs. Miller to alter, insure, and in any manner deal with any real or personal property tangible or intangible and any interest therein. (Durable Power of Att’y ¶ E.) He further authorized Mrs. Miller under this same section to improve, manage and insure intangible property that he owns “upon such terms and conditions as the Attorney in Fact shall deem proper.” ( Id.) And, under section P, “Special,” the Decedent declares that he gives his attorney in fact the full power of substitution, in other words, the full power to do and perform every act necessary and convenient to be done as if he were still personally present. (Durable Power of Att’y ¶ P.)
The Decedent clearly intended to give his attorney-in-fact, Mrs. Miller, the full extent of the powers that he could give her. The Decedent granted Mrs. Miller the “fullest powers possible” pursuant to Florida Statute Section 709.08, which he did not intend to limit by enumerating further power. Therefore, his intent was clear, and strictly construing this contract, we must conclude that the Decedent intended to authorize Mrs. Miller to be able to change the named beneficiary on the insurance policy. Because there is no genuine issue of material fact and the law indicates that Mrs. Miller was authorized to change the named beneficiary on the Decedent’s insurance policy, summary judgment shall be granted in favor of Mrs. Miller and the Estate of the Decedent is entitled to the proceeds of the Decedent’s insurance policy.