Since 2007-2008, there has been a rash of cases interpreting what is, and is not, a broad durable power of attorney. This issue had laid dormant for eons until nursing home counsel nosily rattled the POA cage in the ongoing dispute over enforcement of arbitration clauses in long term settings. Slowly an answer about how to interpret POA's is emerging with some convergence among the intermediate appellate courts -- with the exception of the Second District's vague and errant decision in McKibbin v. Alterra, which (erroneously) hinted that POAs had to specify their powers.

If you need a refresher, McKibbin and a string of subsequent cases leading up to the 2008 case of Jaylene v. Moots is here. Jumping ahead to February 2009, we covered Five Points v. Mallory, where the First District aligned itself with the Second in favor of finding broad granting of powers in POAs (tilting against the inferences found in the McKibbin decision). This issue re-occurred in Carrington v. Milo (Second DCA March 2009), Sovereign v. Huerta (Second DCA May 2009), Carrington v. Hicks (Second DCA December 2009), and Jaylene v. Steuer (Second DCA December 2009).

Enter the Fifth District Court of Appeal with the case of Estate of Ellen Lucille Smith et al. v. Southland Suites of Ormand Beach, LLC et al., favorably citing the foregoing First and Second DCA cases as well as conjuring up the 2006 Fourth DCA case, Alterra v. Bryant.

The Fifth DCA offers this concise take-away message from Florida Statute 709.08(6), "unless otherwise stated in the durable power of attorney, the durable power of attorney applies to any interest in property owned by the principal, including... all other contractual or statutory rights or elections." The court specifically disagreed with the challenger's perspective that a POA needed to expressly list "arbitration" as a type of agreement in the attorney-in-fact's abilities. Instead, it held the opposite. Given the string cite which includes recent cases from the First, Second, and Fourth DCAs, we're going to call this issue closed.

This short case also ends the McKibbin mystery as to why it appears to stand alone. In that case, the McKibbin court painted with a broad brush but failed to provide the specific POA language at issue. The Fifth DCA in the Smith case was able to cure that problem since counsel before it had the McKibbin language. In McKibbin, it appears, the POA provided an exclusive list of powers limited to taxes, trusts, real estate, and personal property. The Fifth concurred that it was a limited POA and agreed with the holding of McKibbin -- thereby unleashing McKibbin from marring a clear precedent that all-encompassing (yet vague) POAs should be treated broadly.

Note, at least in the version available over the January 8-10 weekend, the Fifth DCA's opinion mis-spells the Steuer case, cited above, as "Steur."