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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).
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