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última version al 11:12 29 abr 2012
Power of Attorney Forms in the United States
A "financial power of attorney" allows another person (commonly called an "agent" or "attorney-in-fact") to control the finances and other assets of the principal. POA forms are especially useful in case where the principal has become mentally or physically disabled and, thus, no longer capable of handling his or her financial affairs. In order for a POA form to be valid even though the principal has become incapacitated it must also qualify as being "durable" under the law. Under the law of most states, this means the POA form must contain certain magic words indicating durability. The United States Uniform Power of Attorney Act of 2006 from the National Conference of Commissioners on Uniform Law was promulgated in response to a state survey showing substantial diversity among the states in this area of the law. To date, only 13 states have adopted the new model act. This power of attorney form has been designed for use in all states regardless of whether a particular state has adopted the new uniform act. The following major changes are found in the new model act:
- Revoke a spouse-agent's authority upon the dissolution or annulment of the marriage to the principal;
- Require gift making authority for the agent to be expressly stated in the grant of authority;
- Provide a default standard for fiduciary duties;
- Include safeguards against abuse by the agent;
- Protect the reliance of other persons on a power of attorney; and
- Include remedies and sanctions for refusal of other persons to honor a power of attorney.
Authority of the agent to make gifts with the principal's assets now must be specifically granted in the power of attorney form. The mere granting to an agent of general authority to make gifts does not, however, grant an agent unlimited authority under the model act. This provision is intended to curb abuse by agents. Another important change involves penalties for third-parties who fail to honor a properly executed POA form. Banks, in particular, have made an agent's use of POA forms difficult. But the model contains sugar along with the new penalty for non-compliance. Section 119 of the new model act protects persons who in good faith accept an acknowledged power of attorney form. By "acknowledged", the act means a POA form that has been executed by the principal in the presence of a notary who also executed an attestation of the authenticity of the principal's signature. The principal's signature on the POA is presumed genuine if acknowledged. Another change contained in the new model act is that a POA form executed in compliance with the act is presumed to be durable unless it contains express language indicating otherwise. Thus, statutory magic words are no longer required to appear in the body of the form.
A nice summary of the law and links to the power of attorney laws for all 50 states and the district of Columbia is found on the MedLawPlus.com website.
