UNIFORM POWER OF ATTORNEY ACT
ARTICLE I
SECTION 102
DEFINITIONS Section Title
(SUBJECT)
In this [act]: Statutory Language
(UPOAA STATUTE) (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) missing;
(ii) detained, including incarcerated in a
penal system; or
(iii) 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.
Legislative Note: An enacting jurisdiction should review its
respective guardianship, conservatorship, or other protective
proceedings statutes and amend, if necessary for consistency, the
definition of incapacity.
Although most of the definitions in Section 102 are self-Official Comment
(NATIONAL explanatory, a few of the terms warrant further comment.
CONFERENCE OF
COMMISSIONERS ON “Agent” replaces the term “attorney in fact” used in the
UNIFORM STATE Uniform Durable Power of Attorney Act to avoid confusion in the
LAWS COMMITTEE) lay public about the meaning of the term and the difference between
an attorney in fact and an attorney at law. Agent was also used in the
Uniform Statutory Form Power of Attorney Act which this Act
supersedes.
“Incapacity” replaces the term “disability” used in the
Uniform Durable Power of Attorney Act in recognition that disability
does not necessarily render an individual incapable of property and
business management. The definition of incapacity stresses the
operative consequences of the individual’s impairment–inability to
manage property and business affairs–rather than the impairment itself. The definition of incapacity in the Act is also consistent with
the standard for appointment of a conservator under Section 401 of
the Uniform Guardianship and Protective Proceedings Act as amended in 1997.
The definition of “power of attorney” clarifies that the term
applies to any grant of authority in a writing or other record from a
principal to an agent which appears from the grant to be a power of
attorney, without regard to whether the words “power of attorney”
are actually used in the grant.
“Presently exercisable general power of appointment” is
defined to clarify that where the phrase appears in the Act it does not
include a power exercisable by the principal in a fiduciary capacity or exercisable only by will. Cf. Restatement (Third) of Property (Wills and Don. Trans.) ? 19.8 cmt. d (Tentative Draft No. 5,
approved 2006) (noting that unless the donor of a presently
exercisable power of attorney has manifested a contrary intent, it is assumed that the donor intends that the donee’s agent be permitted to
exercise the power for the benefit of the donee). Including in a power
of attorney the authority to exercise a presently exercisable general
power of appointment held by the principal is consistent with the
objective of giving an agent comprehensive management authority
over the principal’s property and financial affairs. The term appears
in Section 211 (Estates, Trusts, and Other Beneficial Interests) in the
context of authority to exercise for the benefit of the principal a
presently exercisable general power of appointment held by the
principal (see Section 211(b)(3)), and in Section 217 (Gifts) in the
context of authority to exercise for the benefit of someone else a
presently exercisable general power of appointment held by the
principal (see Section 217(b)(1)). The term is also incorporated by
reference when using the statutory form in Section 301 to grant
authority with respect to “Estates, Trusts, and Other Beneficial
Interests” or authority with respect to “Gifts.” If a principal wishes
to delegate authority to exercise a power that the principal holds in a
fiduciary capacity, Section 201(a)(7) requires that the power of
attorney contain an express grant of such authority. Furthermore, delegation of a power held in a fiduciary capacity is possible only if
the principal has authority to delegate the power, and the agent’s
authority is necessarily limited by whatever terms govern the
principal’s ability to exercise the power.
Current Colorado Law
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