D. Power of Attorney Flashcards
What is Power of Attorney (PoA)?*
Allows Agent to complete financial transactions on Principal’s behalf
What are the types of PoA?*
Durable PoA
- Survives Principal’s incapacity
Non-durable PoA
- NOT survive Principal’s incapacity
Statutory short form PoA
- Durable
- Must be executed properly
Non-statutory PoA
- Allowed
- Must be 12 point font
- Must be executed same as statutory short form PoA
What is required for executing PoA?*
1) Signed + Dated
2) By Principal w/ ‘capacity’
3) By Agent!!!
- At same time as Principal
- NOT at same time as Principal
4) Acknowledged in same manner as required for deed recording
5) Containing specific language
- Statutory short-form
- Non-statutory form
What is required for Principal to grant Agent authorities?*
Specific authorities
- Principal must place his initials in bracket after each specific authority
ALL authorities
- Principal must place ‘P’ initials in bracket
NOT ‘x’/other mark
- UNLESS Principal lacks capacity for standard signature + routinely signs name with ‘x’/other mark
What purpose may Principal modify PoA?*
Give Agent access to Principal’s digital assets (electronic files, emails)
What is required for making gifts under the statutory short-form PoA?*
Annual aggregate gifts < $500
Annual aggregate gifts > $500!!!
1) Principal must initial statement in PoA!!!
2) Principal must execute separate Statutory Gifts Rider at same time + exact wording!!!
- Mistake in wording/font still allowed (but governed by General Obligations Law)
3) Principal must sign Statutory Gifts Rider /w 2 Witnesses present!!!
4) Statutory Gift Rider may contain modifications related to ALL gift transactions
- ONLY in appropriate sections
What is the standard of care expected by Agent?*
1) As observed by prudent person dealing with another’s property
2) Performing fiduciary duty in Principal’s best interests;
- Acting by Principal’s instructions/best interests
- Avoiding conflicts of interest
- Separating Principal’s property from Agent’s other property
- Keeping receipts/disbursements/deals entered by Agent on Principal’s behalf + making them available to Principal/TPs at Principal’s request
- NOT making gifts to himself UNLESS authorised under Gift Rider
When may PoA terminate?*
Principal dies
Principal is incapacitated
- ONLY for Non-durable PoA
Principal revokes PoA/Agent’s authority
- NO other co-agent/successor agent
Agent dies/incapacitated/resigns
- NO other co-agent/successor agent
Agent-Principal’s marriage is divorced/annulled/declared null
Purpose of PoA is accomplished
Court revokes PoA
What type of powers are granted in PoA?*
Banking transactions
Bond/Share/Commodity transactions
Business operating transactions
Chattels + goods transactions
Claims + litigation
Estate transactions
Family maintenance
Healthcare billing
Insurance transactions
Real estate transactions
Retirement benefit transactions
Tax matters
What is required for modifications to Statutory Short Form PoA/Statutory Gift Rider?*
1) 12 point font/equivalent writing
2) Signed, dated + acknowledged by Principal
3) Signed, dated + acknowledged by Agent
What is required for executing Statutory Gift Rider*
1) 2 Witnesses
2) Notary
- May be one of Ws
