Laws – Arkansas Title 28 Subtitle 5 Chapter 68 Subchapter 4 – Uniform Statutory Form Power of Attorney Act

License / Price: Free
Version: Adobe PDF (.pdf)
File size: 175 Kb
6,049 Downloads
1 Star2 Stars3 Stars4 Stars5 Stars (No Ratings Yet)
Loading...

Arkansas Codes
Title 28 – Wills, Estates, and Fiduciary Relationships
Subtitle 5 – Fiduciary Relationships
Chapter 68 – Powers Of Attorney

Subchapter 1 – General Provisions

§ 28-68-101 – Revocation.

28-68-101. Revocation.

(a) (1) The death of a principal who has executed a written power of attorney, durable or otherwise, does not revoke or terminate the agency as to the attorney in fact or other person, who, without actual knowledge of the death of the principal, acts in good faith under the power.

(2) Any action so taken, unless otherwise invalid or unenforceable, binds successors in interest of the principal.

(b) (1) The disability or incapacity of a principal who has previously executed a written power of attorney that is not a durable power does not revoke or terminate the agency as to the attorney in fact or other person, who, without actual knowledge of the disability or incapacity of the principal, acts in good faith under the power.

(2) Any action so taken, unless otherwise invalid or unenforceable, binds the principal and his or her successors in interest.

Subchapter 2 – Durable Powers of Attorney

§ 28-68-201 – Definition.

28-68-201. Definition.

As used in this subchapter, unless the context otherwise requires, a durable power of attorney is a power of attorney by which a principal designates another his attorney in fact in writing and the writing contains the words “This power of attorney shall not be affected by subsequent disability or incapacity of the principal” or “This power of attorney shall become effective upon the disability or incapacity of the principal” or similar words showing the intent of the principal that the authority conferred shall be exercisable notwithstanding the principal’s subsequent disability or incapacity.

§ 28-68-202 – Disability of principal — Effect.

28-68-202. Disability of principal — Effect.

All acts done by an attorney in fact pursuant to a durable power of attorney during any period of disability or incapacity of the principal have the same effect and inure to the benefit of and bind the principal and his successors in interest as if the principal were competent and not disabled.

§ 28-68-203 – Relation of attorney in fact to court-appointed fiduciary.

28-68-203. Relation of attorney in fact to court-appointed fiduciary.

(a) (1) If, following execution of a durable power of attorney, a court of the principal’s domicile appoints a conservator, guardian of the estate, or other fiduciary charged with the management of all of the principal’s property or all of his property except specified exclusions, the attorney in fact is accountable to the fiduciary as well as to the principal.

(2) The fiduciary has the same power to revoke or amend the power of attorney that the principal would have had if he were not disabled or incapacitated.

(b) (1) A principal may nominate, by a durable power of attorney, the conservator, guardian of his estate, or guardian of his person for consideration by the court if protective proceedings for the principal’s person or estate are thereafter commenced.

(2) The court shall make its appointment in accordance with the principal’s most recent nomination in a durable power of attorney except for good cause or disqualification.

Subchapter 3 – Powers of Attorney for Small Property Interests

§ 28-68-301 – Construction.

28-68-301. Construction.

The provisions of this subchapter shall be liberally construed so as to effectuate its purposes.

§ 28-68-302 – Applicability of subchapter.

28-68-302. Applicability of subchapter.

This subchapter governs only powers of attorney executed under it. It does not affect powers of attorney executed under other statutes or the common law of this state.

§ 28-68-303 – Limits of power.

28-68-303. Limits of power.

A power of attorney executed under authority of this subchapter which grants powers concerning property or income shall be approved only if limited to:

(1) Property having a gross value not exceeding twenty thousand dollars ($20,000), exclusive of homestead, and excluding the capitalized value of any annual income; or

(2) An annual money income covered by the instrument not exceeding six thousand dollars ($6,000).

§ 28-68-304 – Execution and approval.

28-68-304. Execution and approval.

(a) If a resident of this state desires to execute a power of attorney in anticipation of or because of infirmity resulting from injury, old age, senility, blindness, disease, or other related or similar cause as a means of providing for the care of his or her person or property, or both, the resident shall execute the instrument in one (1) of the following three (3) methods:

(1) In the presence of and with the approval of a judge of the circuit court of the county of the principal’s domicile;

(2) In the presence of at least two (2) witnesses who shall attest and prove the execution by affidavit to be filed with the instrument, to be approved by a judge of the circuit court of the county of the principal’s domicile; or

(3) (A) In the presence of a notary public who shall acknowledge the instrument.

(B) The instrument, with the certificate of a notary public, shall be filed with and approved by the circuit court of the county of the principal’s domicile.

(b) (1) The approval of the judge may be given only if:

(A) The principal requests approval;

(B) The attorney in fact consents to serve;

(C) The judge is satisfied, after any examination and investigation he or she deems appropriate, that the principal is a person covered by this subchapter and reasonably understands the nature and purpose of the power and that the attorney in fact is a suitable person to carry out the obligations imposed upon him or her; and

(D) The provisions of this subchapter have been observed.

(2) Approval may be given informally in chambers or another convenient place without the necessity of service of summons or other notice and shall be endorsed upon the face of the original of the instrument.

§ 28-68-305 – Contents.

28-68-305. Contents.

(a) The power of attorney shall show or state:

(1) The fact of execution under the provisions of this subchapter;

(2) The time and conditions under which the power is to become effective;

(3) The extent and scope of the power conferred;

(4) Who is to exercise the power; and

(5) The annual income covered by the instrument and the nature or description and estimated value of the property, if any, to be affected.

(b) The power of attorney may state the conditions and circumstances under which the power terminates.

§ 28-68-306 – Scope of power.

28-68-306. Scope of power.

(a) The power may be restricted, or it may grant complete authority to provide for the care of the principal’s person and property.

(b) Except to the extent limited by the instrument creating the power or to the extent that court approval is required by the instrument, the attorney in fact without prior court approval may:

(1) Endorse checks and other instruments made payable to the principal;

(2) Sell, encumber, lease, or otherwise manage the principal’s property; and

(3) Execute and deliver deeds, conveyances, stock and bond transfers, contracts, and other instruments necessary to carry out the power.

(c) The power remains valid until terminated as provided in this subchapter.

(d) The power is not invalidated by reason of any subsequent change in the mental or physical condition of the principal, including, but not restricted to, incompetency.

§ 28-68-307 – Filing of power.

28-68-307. Filing of power.

(a) The original power of attorney shall be filed in the office of the probate clerk of the circuit court of the county of the domicile of the principal.

(b) A certified copy of the original power of attorney, together with the record of judicial approval, shall be recorded in the office of the recorder of each county in which real property to be affected by an exercise of the power is located.

§ 28-68-308 – Attorney in fact — Qualifications — Liability.

28-68-308. Attorney in fact — Qualifications — Liability.

(a) The attorney in fact may be an individual, a corporation authorized by law to act in a fiduciary capacity, an agency of government, a Community Fund or United Fund participating agency, or the American Red Cross.

(b) Unless otherwise provided in the power of attorney, an attorney in fact is bound by standards of conduct and liability applicable to other fiduciaries.

(c) A performance bond shall not be filed unless required by a provision of the power.

§ 28-68-309 – Attorney in fact — Accounting and delivery of property.

28-68-309. Attorney in fact — Accounting and delivery of property.

(a) An attorney in fact shall account to the principal or his or her legal representative at times specified in the power of attorney, at any time directed by a judge of the approving court, and upon termination of the power or his or her authority.

(b) He or she shall deliver promptly to the principal, his or her legal representative, or a successor attorney in fact all property held by him or her as attorney in fact upon termination of the power or his or her authority.

§ 28-68-310 – Reimbursement for expenses — Compensation.

28-68-310. Reimbursement for expenses — Compensation.

An attorney in fact is entitled to reimbursement for his or her reasonable expenses incurred in the performance of his or her duties and, unless precluded by the power of attorney, to reasonable compensation for his or her services, payable out of the income and assets subject to the power. The amount of compensation and time of payment may be fixed in the power.

§ 28-68-311 – Third parties.

28-68-311. Third parties.

(a) A person dealing with the attorney in fact is not required to inquire into the validity or adequacy of proceedings involving an approval or filing and recording of the power of attorney to determine if the principal or attorney in fact is qualified or to determine whether the power may have been terminated, if not yet shown by filing and recording under 28-68-312(b).

(b) He or she is not required to inquire into the validity or propriety of any act of an attorney in fact apparently authorized by his or her approved power or to assure the proper application by the attorney in fact of any money or property paid or delivered to him or her.

§ 28-68-312 – Termination of power.

28-68-312. Termination of power.

(a) A power of attorney terminates on:

(1) Written revocation by the principal;

(2) Death of the principal;

(3) Order of a court appointing a guardian of the person or property, or both, of the principal, unless the order provides otherwise;

(4) Expiration or termination as specified in the power of attorney; or

(5) A determination by a judge of the approving court that the value of the property or the amount of the annual money income covered by the instrument has so increased that this subchapter is no longer appropriately applicable.

(b) The original resignation of an attorney in fact, a written revocation of the power of attorney by a principal, or a certified copy of the death certificate of the principal or of the attorney in fact, or a certified copy of any court judgment or order terminating the power of attorney or removing the attorney in fact for cause shall be filed promptly in the office of the clerk of the court whose judge approved the power, and certified copies shall be recorded promptly in all offices in which a certified copy of the original power of attorney is recorded. A notation of the terminating event shall be made by the clerk on the face of the original power of attorney.

(c) (1) The attorney in fact is liable to the principal and the principal’s estate for all damage and loss the principal suffers because of the attorney’s acts done after the attorney receives notice of the termination of his or her authority or after termination by provision of the power itself.

(2) After the power is terminated, other than by death of the principal, he or she may perform ministerial acts reasonably necessary to complete and conclude his or her duties.

§ 28-68-313 – Appointment of successor attorney.

28-68-313. Appointment of successor attorney.

(a) If the attorney in fact or any successor dies, ceases to act, refuses or is unable to serve, resigns, fails to maintain or replace a bond, or is removed for cause by a court, a successor attorney in fact may be appointed by the principal.

(b) If the principal, without having revoked the power of attorney, fails or is unable to appoint a successor within a reasonable time, a judge of the court which approved the power may appoint a successor unless precluded from doing so by provisions of the original power of attorney.

(c) The appointment of a successor attorney in fact shall be in writing.

(d) If the appointment is by the principal, it is subject to approval by a judge of the court which approved the original power.

(e) The original and certified copies of the appointment of the successor shall be filed and recorded as required for an original power of attorney.

Subchapter 4 – Uniform Statutory Form Power of Attorney Act

§ 28-68-401 – Statutory form of power of attorney.

28-68-401. Statutory form of power of attorney.

(a) Form. The following statutory form of power of attorney is legally sufficient:

STATUTORY POWER OF ATTORNEY

(b) Requirements. A statutory power of attorney is legally sufficient under this subchapter, if the wording of the form complies substantially with subsection (a), the form is properly completed, and the signature of the principal is acknowledged.

(c) Grant of All Listed Powers. If the line in front of (N) of the form under subsection (a) is initialed, an initial on the line in front of any other power does not limit the powers granted by line (N).

§ 28-68-402 – Durable power of attorney.

28-68-402. Durable power of attorney.

A power of attorney legally sufficient under this subchapter is durable to the extent that durable powers are permitted by other law of this State and the power of attorney contains language, such as “This power of attorney will continue to be effective if I become disabled, incapacitated, or incompetent,” showing the intent of the principal that the power granted may be exercised notwithstanding later disability, incapacity, or incompetency.

§ 28-68-403 – Construction of powers generally.

28-68-403. Construction of powers generally.

By executing a statutory power of attorney with respect to a subject listed in 28-68-401(a), the principal, except as limited or extended by the principal in the power of attorney, empowers the agent, for that subject to:

(1) demand, receive, and obtain by litigation or otherwise, money or other thing of value to which the principal is, may become, or claims to be entitled; and conserve, invest, disburse, or use anything so received 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, reform, release, or modify the contract or another contract made by or on behalf of the principal;

(3) execute, acknowledge, seal, and deliver a deed, revocation, mortgage, lease, notice, check, release, or other instrument the agent considers desirable to accomplish a purpose of a transaction;

(4) prosecute, defend, submit to arbitration, settle, and 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 to carry out an act authorized by the power of attorney;

(6) engage, compensate, and discharge an attorney, accountant, expert witness, or other assistant;

(7) keep appropriate records of each transaction, including an accounting of receipts and disbursements;

(8) prepare, execute, and file a record, report, or other document the agent considers desirable to safeguard or promote the principal’s interest under a statute or governmental regulation;

(9) reimburse the agent for expenditures properly made by the agent in exercising the powers granted by the power of attorney; and

(10) in general, do any other lawful act with respect to the subject.

§ 28-68-404 – Construction of power relating to real property transactions.

28-68-404. Construction of power relating to real property transactions.

(a) In a statutory power of attorney, the language granting power with respect to real property transactions empowers the agent to:

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

(2) sell, exchange, convey with or without covenants, quitclaim, release, surrender, mortgage, encumber, partition, consent to partitioning, subdivide, apply for zoning, rezoning, or other governmental permits, plat or consent to platting, develop, grant options concerning, lease, sublease, or otherwise dispose of, an interest in real property, a right incident to real property, or a principal’s dower, curtesy, or homestead rights in real property;

(3) release, assign, satisfy, and enforce by litigation or otherwise, a mortgage, deed of trust, encumbrance, lien, or other claim to real property which exists or is asserted;

(4) do any act of management or of conservation with respect to an interest in real property, or a right incident to real property, owned, or claimed to be owned, by the principal, including:

(i) insuring against a casualty, liability, or loss;

(ii) obtaining or regaining possession, or protecting the interest or right, by litigation or otherwise;

(iii) paying, compromising, or contesting taxes or assessments, or applying for and receiving refunds in connection with them; and

(iv) purchasing supplies, hiring assistance or labor, and making repairs or alterations in the real property;

(5) 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;

(6) participate in a reorganization with respect to real property or a legal entity that owns an interest in or right incident to real property and receive and hold shares of stock or obligations received in a plan of reorganization, and act with respect to them, including:

(i) selling or otherwise disposing of them;

(ii) exercising or selling an option, conversion, or similar right with respect to them; and

(iii) voting them in person or by proxy;

(7) change the form of title of an interest in or right incident to real property;

(8) 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) Unless specifically limited, the foregoing powers concerning real property shall include the foregoing acts involving the principal’s homestead.

§ 28-68-405 – Construction of power relating to tangible personal property transactions.

28-68-405. Construction of power relating to tangible personal property transactions.

In a statutory power of attorney, the language granting power with respect to tangible personal property transactions empowers the agent to:

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

(2) sell, exchange, convey with or without covenants, release, surrender, mortgage, encumber, pledge, hypothecate, create a security interest in, pawn, grant options concerning, lease, sublease to others, or otherwise dispose of tangible personal property or an interest in tangible personal property;

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

(4) do an act of management or conservation with respect to tangible personal property or an interest in tangible personal property on behalf of the principal, including:

(i) insuring against casualty, liability, or loss;

(ii) obtaining or regaining possession, or protecting the property or interest, by litigation or otherwise;

(iii) paying, compromising, or contesting taxes or assessments or applying for and receiving refunds in connection with taxes or assessments;

(iv) moving from place to place;

(v) storing for hire or on a gratuitous bailment; and

(vi) using, altering, and making repairs or alterations.

§ 28-68-406 – Construction of power relating to stock and bond transactions.

28-68-406. Construction of power relating to stock and bond transactions.

In a statutory power of attorney, the language granting power with respect to stock and bond transactions empowers the agent to buy, sell, and exchange stocks, bonds, mutual funds, and all other types of securities and financial instruments except commodity futures contracts and call and put options on stocks and stock indexes, receive certificates and other evidences of ownership with respect to securities, exercise voting rights with respect to securities in person or by proxy, enter into voting trusts, and consent to limitations on the right to vote.

§ 28-68-407 – Construction of power relating to commodity and option transactions.

28-68-407. Construction of power relating to commodity and option transactions.

In a statutory power of attorney, the language granting power with respect to commodity and option transactions empowers the agent to buy, sell, exchange, assign, settle, and exercise commodity futures contracts and call and put options on stocks and stock indexes traded on a regulated option exchange, and establish, continue, modify, and terminate option accounts with a broker.

§ 28-68-408 – Construction of power relating to banking and other financial institution transactions.

28-68-408. Construction of power relating to banking and other financial institution transactions.

In a statutory power of attorney, the language granting power with respect to banking and other financial institution transactions empowers 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) hire a safe deposit box or space in a vault;

(4) contract to procure other services available from a financial institution as the agent considers desirable;

(5) withdraw by check, order, or otherwise money or property of the principal deposited with or left in the custody of a financial institution;

(6) receive bank statements, vouchers, notices, and similar documents from a financial institution and act with respect to them;

(7) enter a safe deposit box or vault and withdraw or add to the contents;

(8) borrow money at an interest rate agreeable to the agent and pledge as security personal property of the principal necessary in order to borrow, pay, renew, or extend the time of payment of a debt of the principal;

(9) 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, receive the cash or other proceeds of those transactions, accept a draft drawn by a person upon the principal, and pay it when due;

(10) receive for the principal and act upon a sight draft, warehouse receipt, or other negotiable or nonnegotiable instrument;

(11) apply for and receive letters of credit, credit cards, and traveler’s checks from a financial institution, and give an indemnity or other agreement in connection with letters of credit; and

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

§ 28-68-409 – Construction of power relating to business operating transactions.

28-68-409. Construction of power relating to business operating transactions.

In a statutory power of attorney, the language granting power with respect to business operating transactions empowers the agent to:

(1) operate, buy, sell, enlarge, reduce, and terminate a business interest;

(2) to the extent that an agent is permitted by law to act for a principal and subject to the terms of the partnership agreement to:

(i) perform a duty or discharge a liability and exercise a right, power, privilege, or option that the principal has, may have, or claims to have, under a partnership agreement, whether or not the principal is a partner;

(ii) enforce the terms of a partnership agreement by litigation or otherwise; and

(iii) defend, submit to arbitration, settle, or compromise litigation to which the principal is a party because of membership in the partnership;

(3) 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 a bond, share, or other instrument of similar character and defend, submit to arbitration, settle, or compromise litigation to which the principal is a party because of a bond, share, or similar instrument;

(4) with respect to a business owned solely by the principal:

(i) continue, modify, renegotiate, extend, and terminate a contract made with an individual or a legal entity, firm, association, or corporation by or on behalf of the principal with respect to the business before execution of the power of attorney;

(ii) determine:

(A) the location of its operation;

(B) the nature and extent of its business;

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

(D) the amount and types of insurance carried;

(E) the mode of engaging, compensating, and dealing with its accountants, attorneys, and other agents and employees;

(iii) change the name or form of organization under which the business is operated and enter into a partnership agreement with other persons or organize a corporation to take over all or part of the operation of the business; and

(iv) demand and receive money due or claimed by the principal or on the principal’s behalf in the operation of the business, and control and disburse the money in the operation of the business;

(5) put additional capital into a business in which the principal has an interest;

(6) join in a plan of reorganization, consolidation, or merger of the business;

(7) sell or liquidate a business or part of it at the time and upon the terms the agent considers desirable;

(8) establish the value of a business under a buy-out agreement to which the principal is a party;

(9) prepare, sign, file, and deliver reports, compilations of information, returns, or other papers with respect to a business which are required by a governmental agency or instrumentality or which the agent considers desirable, and make related payments; and

(10) pay, compromise, or contest taxes or assessments and do any other act which the agent considers desirable to protect the principal from illegal or unnecessary taxation, fines, penalties, or assessments with respect to a business, including attempts to recover, in any manner permitted by law, money paid before or after the execution of the power of attorney.

§ 28-68-410 – Construction of power relating to insurance transactions.

28-68-410. Construction of power relating to insurance transactions.

In a statutory power of attorney, the language granting power with respect to insurance and annuity transactions empowers the agent to:

(1) continue, pay the premium or assessment on, modify, 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 assessment on, modify, rescind, release, or terminate a contract of insurance or annuity procured by the agent;

(4) designate the beneficiary of the contract, but an agent may be named a beneficiary of the contract, or an extension, renewal, or substitute for it, only to the extent the agent was named as a beneficiary under a contract procured by the principal before executing the power of attorney;

(5) apply for and receive a loan on the security of the contract of insurance or annuity;

(6) surrender and receive the cash surrender value;

(7) exercise an election;

(8) change the manner of paying premiums;

(9) change or convert the type of insurance contract or annuity, with respect to which the principal has or claims to have a power described in this section;

(10) change the beneficiary of a contract of insurance or annuity, but the agent may not be designated a beneficiary except to the extent permitted by paragraph (4);

(11) apply for and procure government aid to guarantee or pay premiums of a contract of insurance on the life of the principal;

(12) collect, sell, assign, hypothecate, borrow upon, or pledge the interest of the principal in 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.

§ 28-68-411 – Construction of power relating to estate, trust, and other beneficiary transactions.

28-68-411. Construction of power relating to estate, trust, and other beneficiary transactions.

In a statutory power of attorney, the language granting power with respect to estate, trust, and other beneficiary transactions, empowers the agent to act for the principal in all matters that affect a trust, probate estate, guardianship, conservatorship, escrow, custodianship, or other fund from which the principal is, may become, or claims to be entitled, as a beneficiary, to a share or payment, including to:

(1) accept, reject, disclaim, receive, receipt for, sell, assign, release, pledge, exchange, or consent to a reduction in or modification of a share in or payment from the fund;

(2) demand or obtain by litigation or otherwise money or other thing of value to which the principal is, may become, or claims to be entitled by reason of the fund;

(3) initiate, participate in, and oppose 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;

(4) initiate, participate in, and oppose litigation to remove, substitute, or surcharge a fiduciary;

(5) conserve, invest, disburse, and use anything received for an authorized purpose; and

(6) transfer an interest of the principal in real property, stocks, bonds, accounts with financial institutions, insurance, and other property, to the trustee of a revocable trust created by the principal as settlor.

§ 28-68-412 – Construction of power relating to claims and litigation.

28-68-412. Construction of power relating to claims and litigation.

In a statutory power of attorney, the language with respect to claims and litigation empowers the agent to:

(1) assert and prosecute before a court or administrative agency a claim, a cause of action, counterclaim, offset, and defend against an individual, a legal entity, or government, including suits to recover property or other thing of value, to recover damages sustained by the principal, to eliminate or modify tax liability, or to seek an injunction, specific performance, or other relief;

(2) bring an action to determine adverse claims, intervene in litigation, and act as amicus curiae;

(3) in connection with litigation, procure an attachment, garnishment, libel, 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) in connection with litigation, perform any lawful act, including acceptance of tender, offer of judgment, admission of facts, submission of a controversy on an agreed statement of facts, consent to examination before trial, and binding the principal in litigation;

(5) submit to arbitration, settle, and propose or accept a compromise with respect to a claim or litigation;

(6) waive the issuance and service of process upon the principal, accept service of process, appear for the principal, designate persons upon whom 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 and 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 proceedings, whether voluntary or involuntary, concerning the principal or some other person, with respect to a reorganization proceeding, or a 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; and

(8) pay a judgment against the principal or a settlement made in connection with litigation and receive and conserve money, or other thing of value paid in settlement of or as proceeds of a claim or litigation.

§ 28-68-413 – Construction of power relating to personal and family maintenance.

28-68-413. Construction of power relating to personal and family maintenance.

In a statutory power of attorney, the language granting power with respect to personal and family maintenance empowers the agent to:

(1) do the acts necessary to maintain the customary standard of living of the principal, the principal’s spouse, children, and other individuals customarily or legally entitled to be supported by the principal, including providing living quarters by purchase, lease, or other contract, or paying the operating costs, including interest, amortization payments, repairs, and taxes on premises owned by the principal and occupied by those individuals;

(2) provide for the individuals described in paragraph (1) normal domestic help; usual vacations and travel expenses; and funds for shelter, clothing, food, appropriate education, and other current living costs;

(3) pay for the individuals described in paragraph (1) necessary medical, dental, and surgical care, hospitalization, and custodial care;

(4) continue any provision made by the principal, for the individuals described in paragraph (1), for automobiles or other means of transportation, including registering, licensing, insuring, and replacing them;

(5) maintain or open charge accounts for the convenience of the individuals described in paragraph (1) and open new accounts the agent considers desirable to accomplish a lawful purpose; and

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

§ 28-68-414 – Construction of power relating to benefits from social security, medicare, medicaid, or other governmental programs or military service.

28-68-414. Construction of power relating to benefits from social security, medicare, medicaid, or other governmental programs or military service.

In a statutory power of attorney, the language granting power with respect to benefits from social security, medicare, medicaid or other governmental programs, or civil or military service empowers 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 28-68-413(1), 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) prepare, file, and prosecute a claim of the principal to a benefit or assistance, financial or otherwise, to which the principal claims to be entitled, under a statute or governmental regulation;

(4) prosecute, defend, submit to arbitration, settle, and propose or accept a compromise with respect to any benefits the principal may be entitled to receive; and

(5) receive the financial proceeds of a claim of the type described in this section, conserve, invest, disburse, or use anything received for a lawful purpose.

§ 28-68-415 – Construction of power relating to retirement plan transactions.

28-68-415. Construction of power relating to retirement plan transactions.

In a statutory power of attorney, the language granting power with respect to retirement plan transactions empowers the agent to:

(1) select payment options under any retirement plan in which the principal participates, including plans for self-employed individuals;

(2) designate beneficiaries under those plans and change existing designations;

(3) make voluntary contributions to those plans;

(4) exercise the investment powers available under any self-directed retirement plan;

(5) make “rollovers” of plan benefits into other retirement plans;

(6) if authorized by the plan, borrow from, sell assets to, and purchase assets from the plan; and

(7) waive the right of the principal to be a beneficiary of a joint or survivor annuity if the principal is a spouse who is not employed.

§ 28-68-416 – Construction of power relating to tax matters.

28-68-416. Construction of power relating to tax matters.

In a statutory power of attorney, the language granting power with respect to tax matters empowers the agent to:

(1) prepare, sign, and file federal, state, local, and foreign income, gift, payroll, Federal Insurance Contributions Act returns, 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 section 2032A or any successor section), 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 (25) 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, and any other taxing authority.

§ 28-68-417 – Existing interests — Foreign interests.

28-68-417. Existing interests — Foreign interests.

The powers described in 28-68-403 — 28-68-416 are exercisable equally with respect to an interest 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 powers are exercised or the power of attorney is executed in this state.

§ 28-68-418 – Uniformity of application and construction.

28-68-418. Uniformity of application and construction.

This subchapter shall be applied and construed to effectuate its general purpose to make uniform the law with respect to the subject of this subchapter among states enacting it.

§ 28-68-419 – Short title.

28-68-419. Short title.

This subchapter may be cited as the “Uniform Statutory Form Power of Attorney Act.”

 

Facebook Comments