Theodore Halper, Incompetent, Valerie Halper and Wayne Halper, Co-Plenary Guardians - Page 9

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          See also Kuder v. United Natl. Bank, 497 A.2d 1105, 1108 (D.C.              
          App. 1985); In re Berry's Estate, 329 N.Y.S.2d 915, 916 (N.Y.               
          Sur. 1972); cf. In re Estate of Head, 94 N.M. 656, 615 P.2d 271,            
          274 (App. 1980) (trial court's finding that defendant was                   
          mentally competent when he executed trust agreement, but                    
          incompetent when he executed amendment reversed; no evidence to             
          support finding of incompetence).                                           
               In Florida, only a durable power of attorney is unaffected             
          by the subsequent incapacity of the principal, Fla. Stat. Ann.              
          sec. 709.08(1) (West Supp. 1996), and even a durable power is               
          revoked by a judgment of total or partial incapacity by a court,            
          as occurred here.  See Fla. Stat. Ann. sec. 709.08(3)(b) (West              
          Supp. 1996).                                                                
               Respondent concedes that petitioner was, in fact, left                 
          mentally and physically incompetent by the stroke.                          
          Respondent’s Form 2848 (Power of Attorney and Declaration of                
          Representative) had, thus, already been revoked by operation of             
          law when Bergman signed the Form 872 in 1992.  The only issue is            
          whether, in light of the letters from Bergman, it was reasonable            
          for respondent to continue to rely on the power as authority for            
          Bergman’s representation.                                                   
               It is undisputed that the Forms 872 are regular on their               
          faces.  Where a Form 872 is regular on its face and respondent              
          reasonably relied on it, we have indicated that taxpayers may be            

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