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Introduced Version House Bill 4390 History

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H. B. 4390

 

         (By Delegates Doyle, Rodighiero, Ferro,

           Frazier, Reynolds, Storch and Walters)

         [Introduced February 1, 2012; referred to the

         Committee on the Judiciary.]

 

 

 

A BILL to repeal §39-4-1, §39-4-2, §39-4-3, §39-4-4, §39-4-5, §39-4-6 and §39-4-7 of the Code of West Virginia, 1931, as amended; to amend said code by adding thereto a new article, designated §39-4-401, §39-4-402, §39-4-403, §39-4-404, §39-4-405, §39-4-406, §39-4-407, §39-4-408, §39-4-409, §39-4-410, §39-4-411, §39-4-412, §39-4-413, §39-4-414, §39-4-415, §39-4-416, §39-4-417, §39-4-418, §39-4-419, §39-4-420, §39-4-421, §39-4-422 and §39-4-423; to amend said code by adding thereto a new article, designated §39-5-501, §39-5-502, §39-5-503, §39-5-504, §39-5-505, §39-5-506, §39-5-507, §39-5-508, §39-5-509, §39-5-510, §39-5-511, §39-5-512, §39-5-513, §39-5-514, §39-5-515, §39-5-516 and §39-5-517; to amend said code by adding thereto a new article, designated §39-6-601 and §39-6-602; to amend said code by adding thereto a new article, designated §39-7-701, §39-7-702 and §39-7-703; and to amend and reenact §44A-3-3 of said code, all relating to creating the Uniform Power of Attorney Act; repealing the Uniform Durable Power of Attorney Act; providing a short title; providing definitions; setting forth the applicability of the act; providing that the power of attorney is durable; providing for execution, validity and meaning and effect of power of attorney; nominating conservator or guardian and relation of agent to court-appointed fiduciary; providing when power of attorney effective; terminating power of attorney or agent’s authoritySECTION 110. TERMINATION OF POWER OF ATTORNEY OR AGENTS AUTHORITY; providing for coagents and successor agents and their liability; reimbursing and compensating agent, exception; providing for agent’s acceptance of appointment and agent’s duties; exonerating agent in power of attorney, exceptions; providing certain persons judicial relief to construe a power of attorney or review an agent’s conduct; providing for agent’s liability in certain monetary amounts; providing for resignation of agent; accepting and relying upon acknowledged power of attorney and for what a request may be made before accepting the power of attorney; providing for liability for refusing to accept an acknowledged statutory form power of attorney; providing that laws applicable to financial institutions and entities supercede this act; granting specific and general authority under the power of attorney; providing for granting general authority of the agent under a power of attorney which incorporates by reference a subject matter involving real property, tangible personal property, stocks and bonds, commodities and options, financial institutions, operation of an entity or business, insurance and annuities, estates, trusts and other beneficial interests, claims and litigation, personal and family maintenance, benefits from governmental programs or civil or military service, retirement plans, taxes and gifts; providing a statutory form power of attorney form; providing miscellaneous provisions relating to uniformity of application and construction and relating to electronic signatures in the Global and National Commerce Act; providing application of act on existing powers of attorney; and removing provision in the West Virginia Guardianship and Conservatorship Act that a conservator may not revoke or amend a durable power of attorney without approval of the court.

Be it enacted by the Legislature of West Virginia:

    That §39-4-1, §39-4-2, §39-4-3, §39-4-4, §39-4-5, §39-4-6 and §39-4-7 of the Code of West Virginia, 1931, as amended, be repealed; that said code be amended by adding thereto a new article, designated §39-4-401, §39-4-402, §39-4-403, §39-4-404, §39-4-405, §39-4-406, §39-4-407, §39-4-408, §39-4-409, §39-4-410, §39-4-411, §39-4-412, §39-4-413, §39-4-414, §39-4-415, §39-4-416, §39-4-417, §39-4-418, §39-4-419, §39-4-420, §39-4-421, §39-4-422 and §39-4-423; that said code be amended by adding thereto a new article, designated §39-5-501, §39-5-502, §39-5-503, §39-5-504, §39-5-505, §39-5-506, §39-5-507, §39-5-508, §39-5-509, §39-5-510, §39-5-511, §39-5-512, §39-5-513, §39-5-514, §39-5-515, §39-5-516 and §39-5-517; that said code be amended by adding thereto a new article, designated §39-6-601 and §39-6-602; that said code be amended by adding thereto a new article, designated §39-7-701, §39-7-702 and §39-7-703; and that §44A-3-3 of said code be amended and reenacted, all to read as follows:

                CHAPTER 39. RECORDS AND PAPERS.

ARTICLE 4. UNIFORM POWER OF ATTORNEY ACT.

§39-4-401. Short title.

    This article may be cited as the Uniform Power of Attorney Act.

§39-4-402. Definitions.

    In this article:

    (1) “Agent” means a person granted authority to act for a principal under a power of attorney, whether denominated an agent, attorney-in-fact or otherwise. The term includes an original agent, coagent, successor agent and a person to which an agent’s authority is delegated.

    (2) “Durable,” with respect to a power of attorney means not terminated by the principal’s incapacity.

    (3) “Electronic” means relating to technology having electrical, digital, magnetic, wireless, optical, electromagnetic or similar capabilities.

    (4) “Good faith” means honesty in fact.

    (5) “Incapacity” means inability of an individual to manage property or business affairs because the individual:

    (A) Has an impairment in the ability to receive and evaluate information or make or communicate decisions even with the use of technological assistance; or

    (B) Is:

    (I) Detained, including incarcerated in a penal system; or

    (ii) Outside the United States and unable to return.

    (6) “Person” means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, public corporation, government or governmental subdivision, agency, or instrumentality or any other legal or commercial entity.

    (7) “Power of attorney” means a writing or other record that grants authority to an agent to act in the place of the principal, whether or not the term power of attorney is used.

    (8) “Presently exercisable general power of appointment,” with respect to property or a property interest subject to a power of appointment, means power exercisable at the time in question to vest absolute ownership in the principal individually, the principal’s estate, the principal’s creditors or the creditors of the principal’s estate. The term includes a power of appointment not exercisable until the occurrence of a specified event, the satisfaction of an ascertainable standard, or the passage of a specified period only after the occurrence of the specified event, the satisfaction of the ascertainable standard or the passage of the specified period. The term does not include a power exercisable in a fiduciary capacity or only by will.

    (9) “Principal” means an individual who grants authority to an agent in a power of attorney.

    (10) “Property” means anything that may be the subject of ownership, whether real or personal, or legal or equitable or any interest or right therein.

    (11) “Record” means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.

    (12) “Sign” means, with present intent to authenticate or adopt a record:

    (A) To execute or adopt a tangible symbol; or

    (B) To attach to or logically associate with the record an electronic sound, symbol or process.

    (13) “State” means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands or any territory or insular possession subject to the jurisdiction of the United States.

    (14) “Stocks and bonds” means stocks, bonds, mutual funds and all other types of securities and financial instruments, whether held directly, indirectly or in any other manner. The term does not include commodity futures contracts and call or put options on stocks or stock indexes.

§39-4-403. Applicability.

    This article applies to all powers of attorney except:

    (1) A power to the extent it is coupled with an interest in the subject of the power, including a power given to or for the benefit of a creditor in connection with a credit transaction;

    (2) A power to make health-care decisions;

    (3) A proxy or other delegation to exercise voting rights or management rights with respect to an entity; and

    (4) A power created on a form prescribed by a government or governmental subdivision, agency or instrumentality for a governmental purpose.

§39-4-404. Power of attorney is durable.

    A power of attorney created under this article is durable unless it expressly provides that it is terminated by the incapacity of the principal.

§39-4-405. Execution of power of attorney.

    A power of attorney must be signed by the principal or in the principal’s conscious presence by another individual directed by the principal to sign the principal’s name on the power of attorney. A signature on a power of attorney is presumed to be genuine if the principal acknowledges the signature before a notary public or other individual authorized by law to take acknowledgments.

§39-4-406. Validity of power of attorney.

    (a) A power of attorney executed in this state on or after July 1, 2012, is valid if its execution complies with section four hundred five of this article.

    (b) A power of attorney executed in this state before July 1, 2012, is valid if its execution complied with the law of this state as it existed at the time of execution.

    © A power of attorney executed other than in this state is valid in this state if, when the power of attorney was executed, the execution complied with:

    (1) The law of the jurisdiction that determines the meaning and effect of the power of attorney pursuant to section one hundred seven of this article; or

    (2) The requirements for a military power of attorney pursuant to 10 U.S.C. 1044b, as amended.

    (d) Except as otherwise provided by statute other than this article, a photocopy or electronically transmitted copy of an original power of attorney has the same effect as the original.

§39-4-407. Meaning and effect of power of attorney.

    The meaning and effect of a power of attorney is determined by the law of the jurisdiction indicated in the power of attorney and, in the absence of an indication of jurisdiction, by the law of the jurisdiction in which the power of attorney was executed.

§39-4-408. Nomination of conservator or guardian; relation of agent to court-appointed fiduciary.

    (a) In a power of attorney, a principal may nominate a conservator of the principal’s estate or guardian of the principal’s person for consideration by the court if protective proceedings for the principal’s estate or person are begun after the principal executes the power of attorney. In the protective proceedings the court shall consider the nomination in accordance with the provisions of section eight, article two, chapter forty-four-a of this code.

    (b) If, after a principal executes a power of attorney, a court appoints a conservator of the principal’s estate or other fiduciary charged with the management of some or all of the principal's property, the agent is accountable to the fiduciary as well as to the principal. Unless otherwise ordered by the court making the appointment, the power of attorney and the agent’s authority thereunder terminates upon the appointment.

§39-4-409. When power of attorney effective.

    (a) A power of attorney is effective when executed unless the principal provides in the power of attorney that it becomes effective at a future date or upon the occurrence of a future event or contingency.

    (b) If a power of attorney becomes effective upon the occurrence of a future event or contingency, the principal, in the power of attorney, may authorize one or more persons to determine in a writing or other record that the event or contingency has occurred.

    © If a power of attorney becomes effective upon the principal’s incapacity and the principal has not authorized a person to determine whether the principal is incapacitated, or the person authorized is unable or unwilling to make the determination, the power of attorney becomes effective upon a determination in a writing or other record by:

    (1) A physician or licensed psychologist that the principal is incapacitated within the meaning of section one hundred two (5)(A) of this article; or

    (2) An attorney at law, a judge or an appropriate governmental official that the principal is incapacitated within the meaning of section four hundred two of this article.

    (d) A person authorized by the principal in the power of attorney to determine that the principal is incapacitated may act as the principal’s personal representative pursuant to the Health Insurance Portability and Accountability Act, Sections 1171 through 1179 of the Social Security Act, 42 U.S.C. 1320d, as amended, and applicable regulations, to obtain access to the principal’s health-care information and communicate with the principal’s health-care provider.

§39-4-410. Termination of power of attorney or agent’s authority.

    (a) A power of attorney terminates when:

    (1) The principal dies;

    (2) The principal becomes incapacitated, if the power of attorney is not durable;

    (3) The principal revokes the power of attorney;

    (4) The power of attorney provides that it terminates;

    (5) The purpose of the power of attorney is accomplished; or

    (6) The principal revokes the agent’s authority or the agent dies, becomes incapacitated, or resigns, and the power of attorney does not provide for another agent to act under the power of attorney.

    (b) An agent’s authority terminates when:

    (1) The principal revokes the authority;

    (2) The agent dies, becomes incapacitated, or resigns;

    (3) An action is filed for the dissolution or annulment of the agent’s marriage to the principal or their legal separation, unless the power of attorney otherwise provides; or

    (4) The power of attorney terminates.

    © Unless the power of attorney otherwise provides, an agent’s authority is exercisable until the authority terminates pursuant to this section, notwithstanding a lapse of time since the execution of the power of attorney.

    (d) Termination of an agent’s authority or of a power of attorney is not effective as to the agent or another person that, without actual knowledge of the termination, acts in good faith under the power of attorney. An act so performed, unless otherwise invalid or unenforceable, binds the principal and the principal’s successors in interest.

    (e) Incapacity of the principal of a power of attorney that is not durable does not revoke or terminate the power of attorney as to an agent or other person who, without actual knowledge of the incapacity, acts in good faith under the power of attorney. An act so performed, unless otherwise invalid or unenforceable, binds the principal and the principal’s successors in interest.

    (f) The execution of a power of attorney does not revoke a power of attorney previously executed by the principal unless the subsequent power of attorney provides that the previous power of attorney is revoked or that all other powers of attorney are revoked.

§39-4-411. Coagents and successor agents.

    (a) A principal may designate two or more persons to act as coagents. Unless the power of attorney otherwise provides, each coagent may exercise his or her authority independently and the consent of all coagents is not necessary for the validity of an act or transaction.

    (b) A principal may designate one or more successor agents to act if an agent resigns, dies, becomes incapacitated, is not qualified to serve, or declines to serve. A principal may grant authority to designate one or more successor agents to an agent or other person designated by name, office or function. Unless the power of attorney otherwise provides, a successor agent:

    (1) Has the same authority as that granted to the original agent; and

    (2) May not act until all predecessor agents have resigned, died, become incapacitated, are no longer qualified to serve, or have declined to serve.

    © Except as otherwise provided in the power of attorney and this article, an agent who does not participate in or conceal a breach of fiduciary duty committed by another agent, including a predecessor agent, is not liable for the actions of the other agent.

    (d) An agent who has actual knowledge of a breach or imminent breach of fiduciary duty by another agent has a duty to notify the principal and, if the principal is incapacitated, take any action reasonably appropriate in the circumstances to safeguard the principal’s best interest. An agent who fails to notify the principal or take action as required by this article is liable for the reasonably foreseeable damages that could have been avoided if the agent had notified the principal or taken such action.

§39-4-412. Reimbursement and compensation of agent.

    Unless the power of attorney otherwise provides, an agent is entitled to reimbursement of expenses reasonably incurred on behalf of the principal and to compensation that is reasonable under the circumstances: Provided, That an agent who is related to the principal as an ancestor, spouse or descendent is not entitled to compensation for services as agent, unless the power of attorney specifically provides for compensation.

§39-4-413. Agent’s acceptance.

    Except as otherwise provided in the power of attorney, a person accepts appointment as an agent under a power of attorney by exercising authority or performing duties as an agent or by any other assertion or conduct indicating acceptance.

§39-4-414. Agent’s duties.

    (a) Notwithstanding provisions in the power of attorney, an agent who has accepted appointment shall:

    (1) Act in accordance with the principal’s reasonable expectations to the extent actually known by the agent and, otherwise, in the principal’s best interest;

    (2) Act in good faith; and

    (3) Act only within the scope of authority granted in the power of attorney.

    (b) Except as otherwise provided in the power of attorney, an agent who has accepted appointment shall:

    (1) Act loyally for the principal’s benefit;

    (2) Act so as not to create a conflict of interest that impairs the agent’s ability to act impartially in the principal’s best interest;

    (3) Act with the care, competence and diligence ordinarily exercised by agents in similar circumstances;

    (4) Keep a record of all receipts, disbursements and transactions made on behalf of the principal;

    (5) Cooperate with a person that has authority to make health-care decisions for the principal to carry out the principal’s reasonable expectations to the extent actually known by the agent and, otherwise, act in the principal’s best interest; and

    (6) Attempt to preserve the principal’s estate plan, to the extent actually known by the agent, if preserving the plan is consistent with the principal’s best interest based on all relevant factors, including:

    (A) The value and nature of the principal’s property;

    (B) The principal’s foreseeable obligations and need for maintenance;

    © Minimization of taxes, including income, estate, inheritance, generation-skipping transfer and gift taxes; and

    (D) Eligibility for a benefit, a program or assistance under a statute or regulation.

    © An agent that acts in good faith is not liable to any beneficiary of the principal’s estate plan for failure to preserve the plan.

    (d) An agent that acts with care, competence and diligence for the best interest of the principal is not liable solely because the agent also benefits from the act or has an individual or conflicting interest in relation to the property or affairs of the principal.

    (e) If an agent is selected by the principal because of special skills or expertise possessed by the agent or in reliance on the agent’s representation that the agent has special skills or expertise, the special skills or expertise must be considered in determining whether the agent has acted with care, competence and diligence under the circumstances.

    (f) Absent a breach of duty to the principal, an agent is not liable if the value of the principal’s property declines.

    (g) An agent who exercises authority to delegate to another person the authority granted by the principal or who engages another person on behalf of the principal is not liable for an act, error of judgment or default of that person if the agent exercises care, competence and diligence in selecting and monitoring the person.

    (h) Except as otherwise provided in the power of attorney, an agent is not required to disclose receipts, disbursements or transactions conducted on behalf of the principal or provide an accounting unless: (1) Ordered by a court; or (2) requested by the principal, a guardian, a conservator, another fiduciary acting for the principal, a governmental agency having authority to protect the welfare of the principal or, upon the death of the principal, by the personal representative or successor in interest of the principal’s estate. If so requested, within thirty days the agent shall comply with the request or provide a writing or other record substantiating why additional time is needed and shall comply with the request within an additional thirty days. If an agent fails or refuses to comply with the provisions of this section, the court may award the principal or other authorized party requesting the disclosure reimbursement of reasonable attorneys fees and costs incurred.

§39-4-415. Exoneration of agent.

    A provision in a power of attorney relieving an agent of liability for breach of duty is binding on the principal and the principal’s successors in interest except to the extent the provision:

    (1) Relieves the agent of liability for breach of duty committed dishonestly, with an improper motive or with reckless indifference to the purposes of the power of attorney or the best interest of the principal; or

    (2) Was inserted as a result of an abuse of a confidential or fiduciary relationship with the principal.

§39-4-416. Judicial relief.

    (a) The following persons may petition a court to construe a power of attorney or review the agent’s conduct and grant appropriate relief:

    (1) The principal or the agent;

    (2) A guardian, conservator or other fiduciary acting for the principal;

    (3) A person authorized to make health-care decisions for the principal;

    (4) The principal’s spouse, parent or descendant;

    (5) An individual who would qualify as a presumptive heir of the principal;

    (6) A person named as a beneficiary to receive any property, benefit or contractual right on the principal’s death or as a beneficiary of a trust created by or for the principal that has a financial interest in the principal’s estate;

    (7) A governmental agency having regulatory authority to protect the welfare of the principal;

    (8) The principal’s caregiver or another person that demonstrates sufficient interest in the principal’s welfare; and

    (9) A person asked to accept the power of attorney.

    (b) Upon motion by the principal, the court shall dismiss a petition filed under this section, unless the court finds that the principal lacks capacity to revoke the agent’s authority or the power of attorney.

§39-4-417. Agent’s liability.

    An agent that violates this article is liable to the principal or the principal’s successors in interest for the amount required to:

    (1) Restore the value of the principal’s property to what it would have been had the violation not occurred;

    (2) Reimburse the principal or the principal’s successors in interest for the attorney’s fees and costs paid on the agent’s behalf out of the principal’s assets;

    (3) Reimburse the reasonable attorneys fees and costs incurred by the principal or the principal’s successors in interest in pursuing rectification of the violation by the agent; and

    (4) Pay such other amounts, damages, costs or expenses as the court may award.

§39-4-418. Agent’s resignation; notice.

    Unless the power of attorney provides a different method for an agent’s resignation, an agent may resign by giving notice to the principal and, if the principal is incapacitated:

    (1) To the conservator or guardian, if one has been appointed for the principal, and a coagent or successor agent; or

    (2) If there is no person described in paragraph (1), to:

    (A) The principal’s caregiver;

    (B) Another person reasonably believed by the agent to have sufficient interest in the principal’s welfare; or

    © A governmental agency having authority to protect the welfare of the principal.

§39-4-419. Acceptance of and reliance upon acknowledged power of attorney.

    (a) For purposes of this section and section four hundred five of this article, “acknowledged” means purportedly verified before a notary public or other individual authorized to take acknowledgments.

    (b) A person who in good faith accepts an acknowledged power of attorney without actual knowledge that the signature is not genuine may rely upon the presumption under the provisions of section four hundred five of this article that the signature is genuine.

    © A person who in good faith accepts an acknowledged power of attorney without actual knowledge that the power of attorney is void, invalid or terminated, that the purported agent’s authority is void, invalid or terminated, or that the agent is exceeding or improperly exercising the agent’s authority may rely upon the power of attorney as if the power of attorney were genuine, valid and still in effect, the agent’s authority were genuine, valid and still in effect, and the agent had not exceeded and had properly exercised the authority except as to a conveyance of interests in real property where the principal has previously filed a notice of termination of the power of attorney in the office of the clerk of the county commission in the county in which the property is located.

    (d) A person who is asked to accept an acknowledged power of attorney may request, and rely upon, without further investigation:

    (1) An agent’s certification under penalty of perjury of any factual matter concerning the principal, agent or power of attorney;

    (2) An English translation of the power of attorney if the power of attorney contains, in whole or in part, language other than English; and

    (3) An opinion of counsel as to any matter of law concerning the power of attorney if the person making the request provides in a writing or other record the reason for the request.

    (e) An English translation or an opinion of counsel requested under this section must be provided at the principal’s expense unless the request is made more than seven business days after the power of attorney is presented for acceptance.

    (f) For purposes of this section and article, a person who conducts activities through employees is without actual knowledge of a fact relating to a power of attorney, a principal or an agent if the employee conducting the transaction involving the power of attorney is without actual knowledge of the fact.

§39-4-420. Liability for refusal to accept acknowledged statutory form power of attorney.

    (a) In this section, “statutory form power of attorney” means a power of attorney substantially in the form provided in this article or that meets the requirements for a military power of attorney pursuant to 10 U.S.C. 1044b, as amended.

    (b) Except as otherwise provided in this section:

    (1) A person shall either accept an acknowledged statutory form power of attorney or request a certification, a translation or an opinion of counsel under section four hundred nineteen (d) of this article no later than seven business days after presentation of the power of attorney for acceptance;

    (2) If a person requests a certification, a translation, or an opinion of counsel under section four hundred nineteen (d) of this article, the person shall accept the statutory form power of attorney no later than five business days after receipt of the certification, translation or opinion of counsel; and

    (3) A person may not require an additional or different form of power of attorney for authority granted in the statutory form power of attorney presented.

    © A person is not required to accept an acknowledged statutory form power of attorney if:

    (1) The person is not otherwise required to engage in a transaction with the principal in the same circumstances;

    (2) Engaging in a transaction with the agent or the principal in the same circumstances would be inconsistent with federal law;

    (3) The person has actual knowledge of the termination of the agent’s authority or of the power of attorney before exercise of the power;

    (4) A request for a certification, a translation, or an opinion of counsel under section four hundred nineteen (d) of this article is not timely provided;

    (5) The person in good faith believes that the power is not valid or that the agent does not have the authority to perform the act requested, whether or not a certification, a translation or an opinion of counsel under section four hundred nineteen (d) of this article has been requested or provided; or

    (6) The person makes, or has actual knowledge that another person has made, a report to the local adult protective services agency stating a good faith belief that the principal may be subject to physical or financial abuse, neglect, exploitation or abandonment by the agent or a person acting for or with the agent.

    (d) A person who refuses in violation of this section to accept an acknowledged statutory form power of attorney is subject to a court order mandating acceptance of the power of attorney. The court may award to the principal or the principal’s agent reasonable attorney’s fees and costs incurred in any action or proceeding that confirms the validity of the power of attorney or mandates acceptance of the power of attorney.

§39-4-421. Principles of law and equity.

    Unless displaced by a provision of this article, the principles of law and equity supplement this article.

§39-4-422. Laws applicable to financial institutions and entities.

    This article does not supersede any other law applicable to financial institutions or other entities, and the other law controls if inconsistent with this article.

§39-4-423. Remedies under other law.

    The remedies under this article are not exclusive and do not abrogate any right or remedy under the law of this state other than this article.

ARTICLE 5. AUTHORITY.

§39-5-501. Authority that requires specific grant; grant of general authority.

    (a) An agent under a power of attorney may do the following on behalf of the principal or with the principal’s property only if the power of attorney expressly grants the agent the authority and exercise of the authority is not otherwise prohibited by another agreement or instrument to which the authority or property is subject to:

    (1) Create, amend, revoke or terminate an inter vivos trust;

    (2) Make a gift;

    (3) Create or change rights of survivorship;

    (4) Create or change a beneficiary designation;

    (5) Delegate authority granted under the power of attorney;

    (6) Waive the principal’s right to be a beneficiary of a joint and survivor annuity, including a survivor benefit under a retirement plan;

    (7) Exercise fiduciary powers that the principal has authority to delegate; or

    (8) Disclaim property, including a power of appointment.

    (b) Notwithstanding a grant of authority to do an act described in this section, unless the power of attorney otherwise provides, an agent that is not an ancestor, spouse or descendant of the principal may not exercise authority under a power of attorney to create in the agent, or in an individual to whom the agent owes a legal obligation of support, an interest in the principal’s property, whether by gift, right of survivorship, beneficiary designation, disclaimer or otherwise.

    © Subject to subsections (a), (b), (d) and (e) of this section, if a power of attorney grants to an agent authority to do all acts that a principal could do, the agent has the general authority described in this article.

    (d) Unless the power of attorney otherwise provides, a grant of authority to make a gift is subject to the provisions of this article.

    (e) Subject to subsections (a), (b) and (d) of this section, if the subjects over which authority is granted in a power of attorney are similar or overlap, the broadest authority controls.

    (f) Authority granted in a power of attorney is exercisable with respect to property that the principal has when the power of attorney is executed or acquires later, whether or not the property is located in this state and whether or not the authority is exercised or the power of attorney is executed in this state.

    (g) An act performed by an agent pursuant to a power of attorney has the same effect and inures to the benefit of and binds the principal and the principal’s successors in interest as if the principal had performed the act.

§39-5-502. Incorporation of authority.

    (a) An agent has authority described in this article if the power of attorney refers to general authority with respect to the descriptive term for the subjects stated in this article or cites the section in this article in which the authority is described.

    (b) A reference in a power of attorney to general authority with respect to the descriptive term for a subject in this article or a citation to this section incorporates the entire provisions of this article as if it were set out in full in the power of attorney.

    © A principal may modify authority incorporated by reference.

§39-5-503. Construction of authority generally.

    Except as otherwise provided in the power of attorney, by executing a power of attorney that incorporates by reference a subject described in sections five hundred four through five hundred-seventeen of this article or that grants to an agent authority to do all acts that a principal could do pursuant to the provisions of this article, a principal authorizes the agent, with respect to that subject, to:

    (1) Demand, receive and obtain by litigation or otherwise, money or another thing of value to which the principal is, may become or claims to be entitled, and conserve, invest, disburse or use anything so received or obtained for the purposes intended;

    (2) Contract in any manner with any person, on terms agreeable to the agent, to accomplish a purpose of a transaction and perform, rescind, cancel, terminate, reform, restate, release or modify the contract or another contract made by or on behalf of the principal;

    (3) Execute, acknowledge, seal, deliver, file or record any instrument or communication the agent considers desirable to accomplish a purpose of a transaction, including creating at any time a schedule listing some or all of the principal’s property and attaching it to the power of attorney;

    (4) Initiate, participate in, submit to alternative dispute resolution, settle, oppose or propose or accept a compromise with respect to a claim existing in favor of or against the principal or intervene in litigation relating to the claim;

    (5) Seek on the principal’s behalf the assistance of a court or other governmental agency to carry out an act authorized in the power of attorney;

    (6) Engage, compensate and discharge an attorney, accountant, discretionary investment manager, expert witness or other advisor;

    (7) Prepare, execute and file a record, report or other document to safeguard or promote the principal’s interest under a statute or rule;

    (8) Communicate with any representative or employee of a government or governmental subdivision, agency or instrumentality, on behalf of the principal;

    (9) Access communications intended for, and communicate on behalf of the principal, whether by mail, electronic transmission, telephone or other means; and

    (10) Do any lawful act with respect to the subject and all property related to the subject.

§39-5-504. Real property.

    (a) Unless the power of attorney otherwise provides, language in a power of attorney granting general authority with respect to real property authorizes the agent to:

    (1) Demand, buy, lease, receive, accept as a gift or as security for an extension of credit, or otherwise acquire or reject an interest in real property or a right incident to real property;

    (2) Sell, exchange, convey with or without covenants, representations, or warranties, quitclaim, release, surrender, retain title for security, encumber, partition, consent to partitioning, subject to an easement or covenant, subdivide, apply for zoning or other governmental permits, plat or consent to platting; develop, grant an option concerning, lease, sublease, contribute to an entity in exchange for an interest in that entity or otherwise grant or dispose of an interest in real property or a right incident to real property;

    (3) Pledge or mortgage an interest in real property or right incident to real property as security to borrow money or pay, renew or extend the time of payment of a debt of the principal or a debt guaranteed by the principal;

    (4) Release, assign, satisfy or enforce by litigation or otherwise a mortgage, deed of trust, conditional sale contract, encumbrance, lien or other claim to real property which exists or is asserted;

    (5) Manage or conserve an interest in real property or a right incident to real property owned or claimed to be owned by the principal, including:

    (A) Insuring against liability or casualty or other loss;

    (B) Obtaining or regaining possession of or protecting the interest or right by litigation or otherwise;

    © Paying, assessing, compromising or contesting taxes or assessments or applying for and receiving refunds in connection with them; and

    (D) Purchasing supplies, hiring assistance or labor and making repairs or alterations to the real property;

    (6) Use, develop, alter, replace, remove, erect or install structures or other improvements upon real property in or incident to which the principal has, or claims to have, an interest or right;

    (7) Participate in a reorganization with respect to real property or an entity that owns an interest in or right incident to real property and receive, hold and act with respect to stocks and bonds or other property received in a plan of reorganization, including:

    (A) Selling or otherwise disposing of them;

    (B) Exercising or selling an option, right of conversion or similar right with respect to them; and

    © Exercising any voting rights in person or by proxy;

    (8) Change the form of title of an interest in or right incident to real property; and

    (9) Dedicate to public use, with or without consideration, easements or other real property in which the principal has, or claims to have, an interest.

    (b) In order to exercise the powers provided in subdivisions (2), (3), (8) and (9), subsection (a) of this section, or to release or assign and interest in real property as described in subdivision (4), subsection (a) of this section, the power of attorney must first be recorded in the office of the clerk of the county commission in the county in which the property is located.

§39-5-505. Tangible personal property.

    Unless the power of attorney otherwise provides, language in a power of attorney granting general authority with respect to tangible personal property authorizes the agent to:

    (1) Demand, buy, receive or accept as a gift or as security for an extension of credit, or otherwise acquire or reject ownership or possession of tangible personal property or an interest in tangible personal property;

    (2) Sell, exchange, convey with or without covenants, representations, or warranties; quitclaim, release, surrender, create a security interest in, grant options concerning, lease, sublease or, otherwise dispose of tangible personal property or an interest in tangible personal property;

    (3) Grant a security interest in tangible personal property or an interest in tangible personal property as security to borrow money or pay, renew or extend the time of payment of a debt of the principal or a debt guaranteed by the principal;

    (4) Release, assign, satisfy or enforce by litigation or otherwise, a security interest, lien or other claim on behalf of the principal, with respect to tangible personal property or an interest in tangible personal property;

    (5) Manage or conserve tangible personal property or an interest in tangible personal property on behalf of the principal, including:

    (A) Insuring against liability or casualty or other loss;

    (B) Obtaining or regaining possession of or protecting the property or interest, by litigation or otherwise;

    © Paying, assessing, compromising or contesting taxes or assessments or applying for and receiving refunds in connection with taxes or assessments;

    (D) Moving the property from place to place;

    (E) Storing the property for hire or on a gratuitous bailment; and

    (F) Using and making repairs, alterations or improvements to the property; and

    (6) Change the form of title of an interest in tangible personal property.

§39-5-506. Stocks and bonds.

    Unless the power of attorney otherwise provides, language in a power of attorney granting general authority with respect to stocks and bonds authorizes the agent to:

    (1) Buy, sell and exchange stocks and bonds;

    (2) Establish, continue, modify or terminate an account with respect to stocks and bonds;

    (3) Pledge stocks and bonds as security to borrow, pay, renew or extend the time of payment of a debt of the principal;

    (4) Receive certificates and other evidences of ownership with respect to stocks and bonds; and

    (5) Exercise voting rights with respect to stocks and bonds in person or by proxy, enter into voting trusts and consent to limitations on the right to vote.

§39-5-507. Commodities and options.

    Unless the power of attorney otherwise provides, language in a power of attorney granting general authority with respect to commodities and options authorizes the agent to:

    (1) Buy, sell, exchange, assign, settle and exercise commodity futures contracts and call or put options on stocks or stock indexes traded on a regulated option exchange; and

    (2) Establish, continue, modify and terminate option accounts.

§39-5-508. Banks and other financial institutions.

    Unless the power of attorney otherwise provides, language in a power of attorney granting general authority with respect to banks and other financial institutions authorizes the agent to:

    (1) Continue, modify and terminate an account or other banking arrangement made by or on behalf of the principal;

    (2) Establish, modify and terminate an account or other banking arrangement with a bank, trust company, savings and loan association, credit union, thrift company, brokerage firm or other financial institution selected by the agent;

    (3) Contract for services available from a financial institution, including renting a safe deposit box or space in a vault;

    (4) Withdraw, by check, order, electronic funds transfer or otherwise, money or property of the principal deposited with or left in the custody of a financial institution;

    (5) Receive statements of account, vouchers, notices and similar documents from a financial institution and act with respect to them;

    (6) Enter a safe deposit box or vault and withdraw or add to the contents;

    (7) Borrow money and pledge as security personal property of the principal necessary to borrow money or pay, renew or extend the time of payment of a debt of the principal or a debt guaranteed by the principal;

    (8) Make, assign, draw, endorse, discount, guarantee and negotiate promissory notes, checks, drafts and other negotiable or nonnegotiable paper of the principal or payable to the principal or the principal’s order, transfer money, receive the cash or other proceeds of those transactions, and accept a draft drawn by a person upon the principal and pay it when due;

    (9) Receive for the principal and act upon a sight draft, warehouse receipt or other document of title whether tangible or electronic or other negotiable or nonnegotiable instrument;

    (10) Apply for, receive and use letters of credit, credit and debit cards, electronic transaction authorizations and traveler’s checks from a financial institution and give an indemnity or other agreement in connection with letters of credit; and

    (11) Consent to an extension of the time of payment with respect to commercial paper or a financial transaction with a financial institution.

§39-5-509. Operation of entity or business.

    Subject to the terms of a document or an agreement governing an entity or an entity ownership interest, and unless the power of attorney otherwise provides, language in a power of attorney granting general authority with respect to operation of an entity or business authorizes the agent to:

    (1) Operate, buy, sell, enlarge, reduce or terminate an ownership interest;

    (2) Perform a duty or discharge a liability and exercise in person or by proxy a right, power, privilege or option that the principal has, may have, or claims to have;

    (3) Enforce the terms of an ownership agreement;

    (4) Initiate, participate in, submit to alternative dispute resolution, settle, oppose or propose or accept a compromise with respect to litigation to which the principal is a party because of an ownership interest;

    (5) Exercise in person or by proxy, or enforce by litigation or otherwise, a right, power, privilege or option the principal has or claims to have as the holder of stocks and bonds;

    (6) Initiate, participate in, submit to alternative dispute resolution, settle, oppose or propose or accept a compromise with respect to litigation to which the principal is a party concerning stocks and bonds;

    (7) With respect to an entity or business owned solely by the principal:

    (A) Continue, modify, renegotiate, extend and terminate a contract made by or on behalf of the principal with respect to the entity or business before execution of the power of attorney;

    (B) Determine:

    (I) The location of its operation;

    (ii) The nature and extent of its business;

    (iii) The methods of manufacturing, selling, merchandising, financing, accounting and advertising employed in its operation;

    (iv) The amount and types of insurance carried; and

    (v) The mode of engaging, compensating and dealing with its employees and accountants, attorneys or other advisors;

    © Change the name or form of organization under which the entity or business is operated and enter into an ownership agreement with other persons to take over all or part of the operation of the entity or business; and

    (D) Demand and receive money due or claimed by the principal or on the principal’s behalf in the operation of the entity or business and control and disburse the money in the operation of the entity or business;

    (8) Put additional capital into an entity or business in which the principal has an interest;

    (9) Join in a plan of reorganization, consolidation, conversion, domestication, or merger of the entity or business;

    (10) Sell or liquidate all or part of an entity or business;

    (11) Establish the value of an entity or business under a buy-out agreement to which the principal is a party;

    (12) Prepare, sign, file and deliver reports, compilations of information, returns or other papers with respect to an entity or business and make related payments; and

    (13) Pay, compromise, or contest taxes, assessments, fines or penalties and perform any other act to protect the principal from illegal or unnecessary taxation, assessments, fines or penalties, with respect to an entity or business, including attempts to recover, in any manner permitted by law, money paid before or after the execution of the power of attorney.

§39-5-510. Insurance and annuities.

    Unless the power of attorney otherwise provides, language in a power of attorney granting general authority with respect to insurance and annuities authorizes the agent to:

    (1) Continue, pay the premium or make a contribution on, modify, exchange, rescind, release or terminate a contract procured by or on behalf of the principal which insures or provides an annuity to either the principal or another person, whether or not the principal is a beneficiary under the contract;

    (2) Procure new, different and additional contracts of insurance and annuities for the principal and the principal’s spouse, children and other dependents, and select the amount, type of insurance or annuity and mode of payment;

    (3) Pay the premium or make a contribution on, modify, exchange, rescind, release or terminate a contract of insurance or annuity procured by the agent;

    (4) Apply for and receive a loan secured by a contract of insurance or annuity;

    (5) Surrender and receive the cash surrender value on a contract of insurance or annuity;

    (6) Exercise an election;

    (7) Exercise investment powers available under a contract of insurance or annuity;

    (8) Change the manner of paying premiums on a contract of insurance or annuity;

    (9) Change or convert the type of insurance or annuity with respect to which the principal has or claims to have authority described in this section;

    (10) Apply for and procure a benefit or assistance under a statute or regulation to guarantee or pay premiums of a contract of insurance on the life of the principal;

    (11) Collect, sell, assign, hypothecate, borrow against or pledge the interest of the principal in a contract of insurance or annuity;

    (12) Select the form and timing of the payment of proceeds from a contract of insurance or annuity; and

    (13) Pay, from proceeds or otherwise, compromise or contest and apply for refunds in connection with, a tax or assessment levied by a taxing authority with respect to a contract of insurance or annuity or its proceeds or liability accruing by reason of the tax or assessment.

§39-5-511. Estates, trusts and other beneficial interests.

    (a) In this section, “estate, trust, or other beneficial interest” means a trust, probate estate, guardianship, conservatorship, escrow, custodianship, or a fund from which the principal is, may become, or claims to be, entitled to a share or payment.

    (b) Unless the power of attorney otherwise provides, language in a power of attorney granting general authority with respect to estates, trusts and other beneficial interests authorizes the agent to:

    (1) Accept, receive, receipt for, sell, assign, pledge or exchange a share in or payment from an estate, trust or other beneficial interest;

    (2) Demand or obtain money or another thing of value to which the principal is, may become, or claims to be, entitled by reason of an estate, trust or other beneficial interest, by litigation or otherwise;

    (3) Exercise for the benefit of the principal a presently exercisable general power of appointment held by the principal;

    (4) Initiate, participate in, submit to alternative dispute resolution, settle, oppose or propose or accept a compromise with respect to litigation to ascertain the meaning, validity or effect of a deed, will, declaration of trust or other instrument or transaction affecting the interest of the principal;

    (5) Initiate, participate in, submit to alternative dispute resolution, settle, oppose or propose or accept a compromise with respect to litigation to remove, substitute or surcharge a fiduciary;

    (6) Conserve, invest, disburse or use anything received for an authorized purpose;

    (7) Transfer an interest of the principal in real property, stocks and bonds, accounts with financial institutions or securities intermediaries, insurance, annuities and other property to the trustee of a revocable trust created by the principal as settler; and

    (8) Reject, renounce, disclaim, release or consent to a reduction in or modification of a share in or payment from an estate, trust or other beneficial interest.

§39-5-512. Claims and litigation.

    Unless the power of attorney otherwise provides, language in a power of attorney granting general authority with respect to claims and litigation authorizes the agent to:

    (1) Assert and maintain before a court or administrative agency a claim, claim for relief, cause of action, counterclaim, offset, recoupment or defense, including an action to recover property or other thing of value, recover damages sustained by the principal, eliminate or modify tax liability, or seek an injunction, specific performance or other relief;

    (2) Bring an action to determine adverse claims or intervene or otherwise participate in litigation;

    (3) Seek an attachment, garnishment, order of arrest or other preliminary, provisional or intermediate relief and use an available procedure to effect or satisfy a judgment, order or decree;

    (4) Make or accept a tender, offer of judgment or admission of facts, submit a controversy on an agreed statement of facts, consent to examination and bind the principal in litigation;

    (5) Submit to alternative dispute resolution, settle and propose or accept a compromise;

    (6) Waive the issuance and service of process upon the principal, accept service of process, appear for the principal, designate persons upon which process directed to the principal may be served, execute and file or deliver stipulations on the principal’s behalf, verify pleadings, seek appellate review, procure and give surety and indemnity bonds, contract and pay for the preparation and printing of records and briefs, receive, execute and file or deliver a consent, waiver, release, confession of judgment, satisfaction of judgment, notice, agreement or other instrument in connection with the prosecution, settlement or defense of a claim or litigation;

    (7) Act for the principal with respect to bankruptcy or insolvency, whether voluntary or involuntary, concerning the principal or some other person, or with respect to a reorganization, receivership or application for the appointment of a receiver or trustee which affects an interest of the principal in property or other thing of value;

    (8) Pay a judgment, award or order against the principal or a settlement made in connection with a claim or litigation; and

    (9) Receive money or other thing of value paid in settlement of or as proceeds of a claim or litigation.

§39-5-513. Personal and family maintenance.

    (a) Unless the power of attorney otherwise provides, language in a power of attorney granting general authority with respect to personal and family maintenance authorizes the agent to:

    (1) Perform the acts necessary to maintain the customary standard of living of the principal, the principal’s spouse and the following individuals, whether living when the power of attorney is executed or later born:

    (A) The principal’s children;

    (B) Other individuals legally entitled to be supported by the principal; and

    © The individuals whom the principal has customarily supported or indicated the intent to support;

    (2) Make periodic payments of child support and other family maintenance required by a court or governmental agency or an agreement to which the principal is a party;

    (3) Provide living quarters for the individuals described in paragraph (1) of this section by:

    (A) Purchase, lease or other contract; or

    (B) Paying the operating costs, including interest, amortization payments, repairs, improvements and taxes, for premises owned by the principal or occupied by those individuals;

    (4) Provide normal domestic help, usual vacations and travel expenses, and funds for shelter, clothing, food, appropriate education, including postsecondary and vocational education and other current living costs for the individuals described in subdivision (1) of this section;

    (5) Pay expenses for necessary health care and custodial care on behalf of the individuals described in subdivision (1) of this section;

    (6) Act as the principal’s personal representative pursuant to the Health Insurance Portability and Accountability Act, Sections 1171 through 1179 of the Social Security Act, 42 U.S.C. 1320d, as amended, and applicable regulations, in making decisions related to the past, present or future payment for the provision of health care consented to by the principal or anyone authorized under the law of this state to consent to health care on behalf of the principal;

    (7) Continue any provision made by the principal for automobiles or other means of transportation, including registering, licensing, insuring and replacing them, for the individuals described in subdivision (1) of this section;

    (8) Maintain credit and debit accounts for the convenience of the individuals described in subdivision (1) of this section and open new accounts; and

    (9) Continue payments incidental to the membership or affiliation of the principal in a religious institution, club, society, order or other organization or to continue contributions to those organizations.

    (b) Authority with respect to personal and family maintenance is neither dependent upon, nor limited by, authority that an agent may or may not have with respect to gifts under this article.

§39-5-514. Benefits from governmental programs or civil or military service.

    (a) In this section, “benefits from governmental programs or civil or military service” means any benefit, program or assistance provided under a federal, state or local statute or regulation including Social Security, Medicare and Medicaid.

    (b) Unless the power of attorney otherwise provides, language in a power of attorney granting general authority with respect to benefits from governmental programs or civil or military service authorizes the agent to:

    (1) Execute vouchers in the name of the principal for allowances and reimbursements payable by the United States or a foreign government or by a state or subdivision of a state to the principal, including allowances and reimbursements for transportation of the individuals described in this article, and for shipment of their household effects;

    (2) Take possession and order the removal and shipment of property of the principal from a post, warehouse, depot, dock or other place of storage or safekeeping, either governmental or private, and execute and deliver a release, voucher, receipt, bill of lading, shipping ticket, certificate or other instrument for that purpose;

    (3) Enroll in, apply for, select, reject, change, amend or discontinue, on the principal’s behalf, a benefit or program;

    (4) Prepare, file and maintain a claim of the principal for a benefit or assistance, financial or otherwise, to which the principal may be entitled under a statute or rule;

    (5) Initiate, participate in, submit to alternative dispute resolution, settle, oppose or propose or accept a compromise with respect to litigation concerning any benefit or assistance the principal may be entitled to receive under a statute or rule; and

    (6) Receive the financial proceeds of a claim described in subdivision(4) of this section and conserve, invest, disburse or use for a lawful purpose anything so received.

§39-5-515. Retirement plans.

    (a) In this section, “retirement plan” means a plan or account created by an employer, the principal or another individual to provide retirement benefits or deferred compensation of which the principal is a participant, beneficiary or owner, including a plan or account under the following sections of the Internal Revenue Code:

    (1) An individual retirement account under Internal Revenue Code 408, 26 U.S.C. 408, as amended;

    (2) A Roth individual retirement account under Internal Revenue Code 408A, 26 U.S.C. 408A, as amended;

    (3) A deemed individual retirement account under Internal Revenue Code 408(q), 26 U.S.C. 408(q), as amended;

    (4) An annuity or mutual fund custodial account under Internal Revenue Code 403(b), 26 U.S.C. 403(b), as amended;

    (5) A pension, profit-sharing, stock bonus or other retirement plan qualified under Internal Revenue Code 401(a), 26 U.S.C. 401(a), as amended;

    (6) A plan under Internal Revenue Code 457(b), 26 U.S.C. 457(b), as amended; and

    (7) A nonqualified deferred compensation plan under Internal Revenue Code 409A, 26 U.S.C. 409A, as amended.

    (b) Unless the power of attorney otherwise provides, language in a power of attorney granting general authority with respect to retirement plans authorizes the agent to:

    (1) Select the form and timing of payments under a retirement plan and withdraw benefits from a plan;

    (2) Make a rollover, including a direct trustee-to-trustee rollover, of benefits from one retirement plan to another;

    (3) Establish a retirement plan in the principal’s name;

    (4) Make contributions to a retirement plan;

    (5) Exercise investment powers available under a retirement plan; and

    (6) Borrow from, sell assets to or purchase assets from a retirement plan.

§39-5-516. Taxes.

    Unless the power of attorney otherwise provides, language in a power of attorney granting general authority with respect to taxes authorizes the agent to:

    (1) Prepare, sign and file federal, state, local and foreign income, gift, payroll, property, Federal Insurance Contributions Act and other tax returns, claims for refunds, requests for extension of time, petitions regarding tax matters and any other tax-related documents, including receipts, offers, waivers, consents, including consents and agreements under Internal Revenue Code 2032A, 26 U.S.C. 2032A, as amended, closing agreements and any power of attorney required by the Internal Revenue Service or other taxing authority with respect to a tax year upon which the statute of limitations has not run and the following twenty-five tax years;

    (2) Pay taxes due, collect refunds, post bonds, receive confidential information and contest deficiencies determined by the Internal Revenue Service or other taxing authority;

    (3) Exercise any election available to the principal under federal, state, local or foreign tax law; and

    (4) Act for the principal in all tax matters for all periods before the Internal Revenue Service or other taxing authority.

§39-5-517. Gifts.

    (a) In this section, a gift “for the benefit of” a person includes a gift to a trust, an account under the Uniform Transfers to Minors Act and a tuition savings account or prepaid tuition plan as defined under Internal Revenue Code 529, 26 U.S.C. 529, as amended.

    (b) Unless the power of attorney otherwise provides, language in a power of attorney granting general authority with respect to gifts authorizes the agent only to:

    (1) Make outright to, or for the benefit of, a person, a gift of any of the principal’s property, including by the exercise of a presently exercisable general power of appointment held by the principal, in an amount per donee not to exceed the annual dollar limits of the federal gift tax exclusion under Internal Revenue Code 2503(b), 26 U.S.C. 2503(b), as amended, without regard to whether the federal gift tax exclusion applies to the gift or if the principal’s spouse agrees to consent to a split gift pursuant to Internal Revenue Code 2513, 26 U.S.C. 2513, as amended, in an amount per donee not to exceed twice the annual federal gift tax exclusion limit; and

    (2) Consent, pursuant to Internal Revenue Code 2513, 26 U.S.C. 2513, as amended, to the splitting of a gift made by the principal’s spouse in an amount per donee not to exceed the aggregate annual gift tax exclusions for both spouses.

    © An agent may make a gift of the principal’s property only as the agent determines is consistent with the principal’s objectives if actually known by the agent and, if unknown, as the agent determines is consistent with the principal’s best interest based on all relevant factors, including:

    (1) The value and nature of the principal’s property;

    (2) The principal’s foreseeable obligations and need for maintenance;

    (3) Minimization of taxes, including income, estate, inheritance, generation-skipping transfer and gift taxes;

    (4) Eligibility for a benefit, a program or assistance under a statute or regulation; and

    (5) The principal’s personal history of making or joining in making gifts.

ARTICLE 6. STATUTORY FORMS.

§39-6-601. Statutory form power of attorney.

    A document substantially in the following form may be used to create a statutory form power of attorney that has the meaning and effect prescribed by this article.

State of West Virginia

STATUTORY FORM POWER OF ATTORNEY

IMPORTANT INFORMATION

    This power of attorney authorizes another person (your agent) to make decisions concerning your property for you (the principal). Your agent will be able to make decisions and act with respect to your property (including your money) whether or not you are able to act for yourself. The meaning of authority over subjects listed on this form is explained in the Uniform Power of Attorney Act [insert citation].

    This power of attorney does not authorize the agent to make health-care decisions for you.

    You should select someone you trust to serve as your agent. Unless you specify otherwise, generally the agent’s authority will continue until you die or revoke the power of attorney or the agent resigns or is unable to act for you.

    Your agent is entitled to reasonable compensation unless you state otherwise in the special instructions. This form provides for designation of one agent. If you wish to name more than one agent you may name a coagent in the Special Instructions. Coagents are not required to act together unless you include that requirement in the Special Instructions. If your agent is unable or unwilling to act for you, your power of attorney will end unless you have named a successor agent. You may also name a second successor agent.

    This power of attorney becomes effective immediately unless you state otherwise in the Special Instructions.

    If you have questions about the power of attorney or the authority you are granting to your agent, you should seek legal advice before signing this form.

DESIGNATION OF AGENT

I __________________________ name the following person as my agent:

    (Name of Principal)

Name of Agent:__________________________________________________

Agent’s Address:___________________________________________________

Agent’s Telephone Number:_________________________________________

    If my agent is unable or unwilling to act for me, I name as my successor agent:

Name of Successor Agent:_________________________________________

Successor Agent’s Address:_________________________________________

Successor Agent’s Telephone Number:________________________________

    If my successor agent is unable or unwilling to act for me, I name as my second successor agent:

Name of Second Successor Agent:____________________________________

Second Successor Agent’s Address:__________________________________

Second Successor Agent’s Telephone Number:________________________

GRANT OF GENERAL AUTHORITY

    I grant my agent and any successor agent general authority to act for me with respect to the following subjects as defined in the Uniform Power of Attorney Act [insert citation]:

(INITIAL each subject you want to include in the agent’s general authority. If you wish to grant general authority over all of the subjects you may initial “All Preceding Subjects” instead of initialing each subject.)

(___) Real Property

(___) Tangible Personal Property

(___) Stocks and Bonds

(___) Commodities and Options

(___) Banks and Other Financial Institutions

(___) Operation of Entity or Business

(___) Insurance and Annuities

(___) Estates, Trusts, and Other Beneficial Interests

(___) Claims and Litigation

(___) Personal and Family Maintenance

(___) Benefits from Governmental Programs or Civil or Military Service

(___) Retirement Plans

(___) Taxes

(___) All Preceding Subjects

GRANT OF SPECIFIC AUTHORITY (OPTIONAL)

    My agent MAY NOT do any of the following specific acts for me UNLESS I have INITIALED the specific authority listed below:

(CAUTION: Granting any of the following will give your agent the authority to take actions that could significantly reduce your property or change how your property is distributed at your death. INITIAL ONLY the specific authority you WANT to give your agent.)

(___) Create, amend, revoke, or terminate an inter vivos trust

(___) Make a gift, subject to the limitations of the West Virginia Uniform Power of Attorney Act and any special instructions in this power of attorney

(___) Create or change rights of survivorship

(___) Create or change a beneficiary designation

(___) Authorize another person to exercise the authority granted under this power of attorney

(___) Waive the principal’s right to be a beneficiary of a joint and survivor annuity, including a survivor benefit under a retirement plan

(___) Exercise fiduciary powers that the principal has authority to delegate

[(___) Disclaim or refuse an interest in property, including a power of appointment]

LIMITATION ON AGENT’S AUTHORITY

      An agent that is not my ancestor, spouse or descendant MAY NOT use my property to benefit the agent or a person to whom the agent owes an obligation of support unless I have included that authority in the Special Instructions.

SPECIAL INSTRUCTIONS (OPTIONAL)

You may give special instructions on the following lines:

_______________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________

EFFECTIVE DATE

      This power of attorney is effective immediately unless I have stated otherwise in the special instructions.

NOMINATION OF [CONSERVATOR OR GUARDIAN] (OPTIONAL)

 

      If it becomes necessary for a court to appoint a [conservator or guardian] of my estate or [guardian] of my person, I nominate the following person(s) for appointment:

Name of Nominee for [conservator or guardian] of my estate:

_________________________________________________________________Nominee’s Address:_________________________________________________

Nominee’s Telephone Number:________________________________________

Name of Nominee for [guardian] of my person:_______________________

Nominee’s Address:_________________________________________________

Nominee’s Telephone Number:_______________________________________

RELIANCE ON THIS POWER OF ATTORNEY

      Any person, including my agent, may rely upon the validity of this power of attorney or a copy of it unless that person knows it has terminated or is invalid.

SIGNATURE AND ACKNOWLEDGMENT

__________________________________     _________________________

Your Signature                         Date

Your Name Printed__________________________________________________

Your Address_____________________________________________________

Your Telephone Number____________________________________________

State of ___________________________________

[County] of_________________________________

      This document was acknowledged before me on ________________,

                                                      (Date)

by______________________________________.

      (Name of Principal)

_______________________________________________  (Seal, if any)

      Signature of Notary 

My commission expires: ________________________

[This document prepared by:_______________________________________]

IMPORTANT INFORMATION FOR AGENT

Agent’s Duties

     When you accept the authority granted under this power of attorney, a special legal relationship is created between you and the principal. This relationship imposes upon you legal duties that continue until you resign or the power of attorney is terminated or revoked. You must:

    (1) Do what you know the principal reasonably expects you to do with the principal’s property or, if you do not know the principal’s expectations, act in the principal’s best interest; act in good faith;

    (2) Do nothing beyond the authority granted in this power of attorney; and

    (3) Disclose your identity as an agent whenever you act for the principal by writing or printing the name of the principal and signing your own name as “agent” in the following manner:

____________________________ by  ______________________________

(Principal’s Name)               (Your Signature) as Agent

    Unless the special instructions in this power of attorney state otherwise, you must also:

    (1) Act loyally for the principal’s benefit;

    (2) Avoid conflicts that would impair your ability to act in the principal’s best interest;

    (3) Act with care, competence and diligence;

    (4) Keep a record of all receipts, disbursements and transactions made on behalf of the principal;

    (5) Cooperate with any person that has authority to make health-care decisions for the principal to do what you know the principal reasonably expects or, if you do not know the principal’s expectations, to act in the principal’s best interest; and

attempt to preserve the principal’s estate plan if you know the plan and preserving the plan is consistent with the principal’s best interest.

Termination of Agent’s Authority

    You must stop acting on behalf of the principal if you learn of any event that terminates this power of attorney or your authority under this power of attorney. Events that terminate a power of attorney or your authority to act under a power of attorney include:

    (1) Death of the principal;

    (2) The principal’s revocation of the power of attorney or your authority;

    (3) The occurrence of a termination event stated in the power of attorney;

    (4) The purpose of the power of attorney is fully accomplished; or

    (5) If you are married to the principal, a legal action is filed with a court to end your marriage or for your legal separation, unless the Special Instructions in this power of attorney state that such an action will not terminate your authority.

Liability of Agent

    The meaning of the authority granted to you is defined in the Uniform Power of Attorney Act [insert citation]. If you violate the Uniform Power of Attorney Act [insert citation] or act outside the authority granted, you may be liable for any damages caused by your violation.

    If there is anything about this document or your duties that you do not understand, you should seek legal advice.

§39-6-602. Agent’s certification

    The following optional form may be used by an agent to certify facts concerning a power of attorney:

AGENT’S CERTIFICATION AS TO THE VALIDITY OF POWER OF ATTORNEY AND AGENT’S AUTHORITY

State of _____________________________

[County] of___________________________]

    I, _____________________________________________ (Name of Agent), [certify] under penalty of perjury that ______________________________(Name of Principal) granted me authority as an agent or successor agent in a power of attorney dated ______________.

    I, Further [certify] that to my knowledge:

    (1) The Principal is alive and has not revoked the power of attorney or my authority to act under the power of attorney and the power of attorney and my authority to act under the power of attorney have not terminated;

    (2) If the power of attorney was drafted to become effective upon the happening of an event or contingency, the event or contingency has occurred;

    (3) If I was named as a successor agent, the prior agent is no longer able or willing to serve; and

___________________________________________________________________________________________________________________________________________________________________________________________________ (Insert other relevant statements)

 SIGNATURE AND ACKNOWLEDGMENT

____________________________________________

    Agent’s Signature             Date

Agent’s Name Printed ____________________________________________

Agent’s Address__________________________________________________

Agent’s Telephone Number_________________________________________

    This document was acknowledged before me on _______________,

(Date)

 by ______________________________________.

               (Name of Agent)

_________________________________________        (Seal, if any)

 Signature of Notary

 My commission expires: ________________________

 [This document prepared by:_____________________________________]

ARTICLE 7. MISCELLANEOUS PROVISIONS.

§39-7-701. Uniformity of application and constructionSECTION 401. UNIFORMITY OF APPLICATION AND CONSTRUCTION.

    In applying and construing the provisions of this article, consideration must be given to the need to promote uniformity of the law with respect to its subject matter among the states that enact it.

§39-7-702. Relation to electronic signatures in Global and National Commerce Act.

    This [act] modifies, limits and supersedes the federal Electronic Signatures in Global and National Commerce Act,15 U.S.C. Section 7001 et seq., but does not modify, limit or supersede Section 101© of that act, 15 U.S.C. Section 7001©, or authorize electronic delivery of any of the notices described in Section 103(b) of that act, 15 U.S.C. Section 7003(b).

§39-7-703. Effect on existing powers of attorneySECTION 403. EFFECT ON EXISTING POWERS OF ATTORNEY.

    (a) Except as otherwise provided in this article, on the effective date of this article its provisions apply to:

    (1) A power of attorney created before, on, or after the effective date of this article;

    (2) A judicial proceeding concerning a power of attorney commenced on or after the effective date of this article; and

    (3) A judicial proceeding concerning a power of attorney commenced before the effective date of this article unless the court finds that application of a provision of this article would substantially interfere with the effective conduct of the judicial proceeding or prejudice the rights of a party, in which case that provision does not apply and the superseded law applies.

    (b) An act done before the effective date of this article is not affected by this article.

CHAPTER 44A. WEST VIRGINIA GUARDIANSHIP

                    AND CONSERVATORSHIP ACT.

ARTICLE 3. GUARDIANSHIP AND CONSERVATORSHIP ADMINISTRATION.

§44A-3-3. Distributive duties and powers of the conservator of a protected person.

    (a) A conservator of a protected person, without the necessity of seeking prior court authorization, shall apply the income and principal of the estate as needed for the protected person's support, care, health, and if applicable, habilitation, education or therapeutic needs. A conservator shall also apply the income and principal as needed for the support of any legal dependents who are unable to support themselves and who are in need of support.

    (b) A conservator, when making distributions, shall exercise authority only to the extent necessitated by the protected person's limitations, and shall, where feasible, encourage the protected person to participate in decisions, to act on his or her own behalf, and to develop or regain the capacity to manage the estate and his or her financial affairs. A conservator shall also consider the size of the estate, the probable duration of the conservatorship, the protected person's accustomed manner of living, other resources known to the conservator to be available, and the recommendations of the guardian.

    © A conservator shall, to the extent known, consider the express desires and personal values of the protected person when making decisions, and shall otherwise act in the protected person's best interests and exercise reasonable care, diligence and prudence.

    (d) A conservator may not revoke or amend a durable power of attorney which has been executed by the protected person without the prior approval of the court.

 


    NOTE: The purpose of this bill is to create the Uniform Power of Attorney Act and to repeal the Uniform Durable Power of Attorney Act and a portion of a statute in conflict with the Act.


    Articles §39-4, §39-5, §39-6 and §39-7 are new; therefore, they have been completely underscored.

 Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.

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