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UNIFORM POWER OF ATTORNEY ACT

By Stephen Reynolds,2014-07-10 21:49
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UNIFORM POWER OF ATTORNEY ACT ...

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 impairmentinability to

    manage property and business affairsrather 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

    (COLORADO

    COMMITTEE

    COMMENTS)

     Committee Comments

    (COLORADO LAW)

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