Theodore Halper, Incompetent, Valerie Halper and Wayne Halper, Co-Plenary Guardians - Page 8

                                        - 8 -                                         

               Here, neither petitioner's actual incapacity, nor the                  
          content and receipt of Bergman's letters, is in dispute.  The               
          only question is whether, as a matter of law, either of the                 
          letters was sufficient to notify respondent that Bergman's                  
          authority was terminated.1  This matter is therefore ripe for               
          summary judgment.2                                                          
               The general rule under the common law is that a power of               
          attorney is revoked by operation of law by the subsequent                   
          incapacity of either the principal or the agent.3  The common law           
          rule has not been modified in Florida by statute.  Millman v.               
          First Fed. Sav. & Loan Association, 198 So. 2d 338, 340 (Fla.               
          Dist. Ct. App. 1967).                                                       
               It follows that an adjudication of incompetency * * *                  
               will effect such a revocation, as being a circumstance                 
               which is inconsistent with a continuation of the                       
               agency.  See 1 Fla. Jur., Agency, sec. 18. [Id.]                       

          1  If either letter provided sufficient notice, the chain of                
          extensions was broken and the statutory period of limitations for           
          1985 and 1986 would have expired, unless the underpayments for              
          those years were due to fraud.                                              
          2  At the hearing on this matter, respondent's counsel said,                
          with regard to the second letter, "I think this particular issue            
          is--well, as we discussed, ripe for a summary judgment motion."             
          Respondent did not offer any testimony or affidavits alleging any           
          intent by Bergman to mislead.                                               
          3  Generally, the loss of capacity by a principal has the                   
          same effect upon the authority of the agent during the period of            
          incapacity as has the principal's death.  1 Restatement, Agency             
          2d, sec. 122 (1957).                                                        

Page:  Previous  1  2  3  4  5  6  7  8  9  10  11  12  13  Next

Last modified: May 25, 2011