Alaska Legislative Update

Alaska Legislative Update

 The Alaska legislature recently amended its laws affecting powers of attorney, uniform probate code, and notaries public, effective January 1, 2017.

 

Alaska House Bill 8

 

The following definitions in the Uniform Probate Code have been revised:

  • “State” has been expanded to also include the United States Virgin Islands;
  • “Agent” has been amended to mean a person granted authority to act for a principal under a power of attorney or to whom an agent’s authority is delegated, whether denominated an agent, attorney-in-fact, original agent, coagent, successor agent, or otherwise.

The following additional definitions have been added:

  •  “Durable” (with respect to a power of attorney) means not terminated by the principal’s incapacity, as defined under state law;
  • “Electronic” means relating to technology having electrical, digital, magnetic, wireless, optical, electromagnetic, or similar capabilities;
  • “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;
  • “Principal” means an individual who grants authority to an agent in a power of attorney;
  • “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;
  • “Sign” means, with present intent to authenticate or adopt a record:
  • To execute or adopt a tangible symbol; or
  • To attach to or logically associate with the record an electronic sound, symbol, or process.

 

The law affecting a power of attorney (POA) has been amended to provide specific details of the obligations and liabilities of an agent, which, among other things, includes:

  • Except as otherwise provided in a POA, a person accepts appointment as an agent by exercising authority or performing duties as an agent or by any other assertion or conduct indicating acceptance.
  • An agent that violates the POA law is liable to the principal or the principal’s successors in interest for the amount required to:
  • Restore the value of the principal’s property to what it would have been had the violation not occurred; and
  • Reimburse the principal or the principal’s successors in interest for the attorney fees and costs paid on the agent’s behalf.
  • An agent that has accepted appointment under a POA must act:
  • In accordance with the principal’s reasonable expectations to the extent known and, otherwise, in the principal’s best interest;
  • In good faith; and
  • Only within the scope of authority granted in the POA.

 

A third party asked to accept a POA may request, and rely upon, without further investigation:

  • An agent’s certification under penalty of perjury of any factual matter concerning the principal, agent, or POA;
  • An English translation of the POA if it contains, in whole or part, a language other than English; and
  • An opinion of counsel as to any matter of law concerning the POA if the person making the request provides in a writing or other record the reason for the request.

 

An English translation or an opinion of counsel (as requested above) must be provided at the principal’s expense unless the request is made more than 5 business days after the POA is presented for acceptance.

 

Except as provided below:

  • A person must accept an acknowledged POA or request a certification, a translation, or an opinion of counsel (as set forth above) not later than 5 business days after presentation of the POA for acceptance;
  • If a person requests a certification, translation, or an opinion of counsel, the person must accept the POA not later than 3 business days after receipt of the certification, translation or opinion of counsel; and
  • A person may not require an additional or different form of POA for authority granted in the POA presented.

 

A person is not required to accept an acknowledged POA if:

  • The person is not otherwise required to engage in a transaction with the principal in the same circumstances;
  • Engaging in a transaction with the agent or principal in the same circumstances would be inconsistent with federal law;
  • The person has actual knowledge of the termination of the agent’s authority or of the POA before exercise of the power;
  • A request for a certification, a translation, or an opinion of counsel is refused;
  • The person in good faith believes that the power is not valid or that the agent does not have the authority to perform the act requested, whether or not a certification, a translation, or an opinion of counsel has been requested or provided; or
  • The person makes, or has actual knowledge that another person has made, a report to the Department of Health and Social Services or other governmental agency, stating a good faith belief that the principal may be subject to physical or financial abuse, neglect, exploitation, or abandonment by the agent or a person acting for or with the agent.

 

A person that refuses to accept an acknowledged POA (unless excepted above) is subject to:

  • A court order mandating acceptance of the POA; and
  • Liability as provided by court rules for attorney fees and costs incurred in any action or proceeding that confirms the validity of the POA.

 

A POA terminates when:

  • The principal dies;
  • There is an incapacity of the principal, if the POA is not durable;
  • The principal revokes the POA;
  • The POA provides that it terminates;
  • The purpose of the POA is accomplished; or
  • The principal revokes the agent’s authority, there is an incapacity of the agent, the agent dies, or the agent resigns and the POA does not provide for another agent to act under the POA.

 

A person who wishes to designate another as attorney-in-fact or agent by POA my execute a statutory form in substantially the following form:

 

 

GENERAL POWER OF ATTORNEY

THE POWERS GRANTED FROM THE PRINCIPAL TO THE AGENT OR AGENTS IN THE FOLLOWING DOCUMENT ARE VERY BROAD.  THEY MAY INCLUDE THE POWER TO DISPOSE, SELL, CONVEY, AND ENCUMBER YOUR REAL AND PERSONAL PROPERTY.  ACCORDINGLY, THE FOLLOWING DOCUMENT SHOULD ONLY BE USED AFTER CAREFUL CONSIDERATION.  IF YOU HAVE ANY QUESTIONS ABOUT THIS DOCUMENT, YOU SHOULD SEEK COMPETENT ADVICE.

 

YOU MAY REVOKE THIS POWER OF ATTORNEY AT ANY TIME.

 

Pursuant to AS 13.26.338 – 13.26.359, I,   [name of principal]  , of   [address of principal]  , do hereby appoint   [name and address of agent or agents]  , my agent(s) to act as indicated below in my name, place, and stead in any way which I myself could do, if I were personally present, with  respect to the following matters, as each of them is defined in AS 13.26.344, to the full extent that I am permitted by law to act through an agent:

MARK THE BOXES BELOW TO INDICATE THE POWERS YOU WANT TO GIVE YOUR AGENT OR AGENTS.  MARK THE BOX FOR “YES” THAT IS OPPOSITE A CATEGORY BELOW TO GIVE YOUR AGENT OR AGENTS THE POWER IN THAT CATEGORY.  IF YOU DO NOT MARK A BOX OPPOSITE A CATEGORY, YOUR AGENT OR AGENTS WILL NOT HAVE THE POWER IN THAT CATEGORY.

YES

(A) real estate transactions                                                                                  ( )

(B) transactions involving tangible personal property, chattels, and goods       ( )

(C) bonds, shares, and commodities transactions                                               ( )

(D) banking transactions                                                                                     ( )

(E) business operating transactions                                                                    ( )

(F) insurance transactions                                                                                   ( )

(G) estate transactions                                                                                         ( )

(H) retirement plans                                                                                           ( )

(I) claims and litigation                                                                                       ( )

(J) personal relationships and affairs                                                                  ( )

(K) benefits from government programs and civil or military service               ( )

(L) records, reports, and statements                                                                    ( )

(M) voter registration and absentee ballot requests                                            ( )

(N) all other matters, including those  specified as follows:                              ( )

 

                                                                                                                                         

                                                                                                                                         

                                                                                                                                         

 

GRANT OF SPECIFIC AUTHORITY (OPTIONAL)

The agent or agents you have appointed WILL NOT have the power to do any of the following acts UNLESS you MARK the box opposite that category:

( ) create, amend, revoke, or terminate an inter vivos trust;

( ) make a gift, subject to the limitations of AS 13.26.344(q) and any special instructions                              in this power of attorney;

( ) create or change a beneficiary designation;

( ) revoke a transfer on death deed made under AS 13.48;

( ) create or change rights of survivorship;

( ) delegate authority granted under the power of attorney;

( ) waive the principal’s right to be a beneficiary of a joint and survivor annuity, including

a survivor benefit under a retirement plan

( ) exercise fiduciary powers that the principal has authority to delegate.

 

IF YOU HAVE APPOINTED MORE THAN ONE AGENT, MARK ONE OF THE FOLLOWING:

( ) Each agent may exercise the powers conferred separately, without the consent of any other agent,

( ) All agents shall exercise the powers conferred jointly, with the consent of all other agents.

 

TO INDICATE WHEN THIS DOCUMENT SHALL BECOME EFFECTIVE, MARK ONE OF THE FOLLOWING:

( ) This document shall become effective upon the date of my signature.

( ) This document shall become effective upon the date of my incapacity and shall not otherwise be affected by my incapacity.

 

IF YOU HAVE INDICATED THAT THIS DOCUMENT SHALL BECOME EFFECTIVE ON THE DATE OF YOUR SIGNATURE, MARK ONE OF THE FOLLOWING:

( ) This document shall not be affected by my subsequent incapacity.

( ) This document shall be revoked by my subsequent incapacity.

 

IF YOU HAVE INDICATED THAT THIS DOCUMENT SHALL BECOME EFFECTIVE UPON THE DATE OF YOUR SIGNATURE AND WANT TO LIMIT THE TERM OF THIS DOCUMENT, COMPLETE THE FOLLOWING:

This document shall only continue in effect for ________ ( ) years from the date of my signature.

 

NOTICE OF REVOCATION OF THE POWERS GRANTED IN THIS DOCUMENT.

You may revoke one or more of the powers granted in this document.  Unless otherwise provided in this document, you may revoke a specific power granted in this power of attorney by completing a special power of attorney that includes the specific power in this document that you want to revoke.  Unless otherwise provided in this document, you may revoke all the powers granted in this power of attorney by completing a subsequent power of attorney.

 

NOTICE TO THIRD PARTIES

A third party who relies on the reasonable representations of an agent as to a matter relating to a power granted by a properly executed statutory form power of attorney does not incur any liability to the principal or to the principal’s heirs, assigns, or estate as a result of permitting the agent to exercise the authority granted by the power of attorney.  A third party who fails to honor a properly executed statutory form power of attorney may be liable to the principal, the agent, the principal’s heirs, assigns, or estate for a civil penalty, plus damages, cost, and fees associated with the failure to comply with the statutory form power of attorney.  If the power of attorney is one which becomes effective upon the incapacity of the principal, the incapacity of the principal is established by an affidavit, as required by law.

 

IN WITNESS WHEREOF, I have hereunto signed my name this ____ day of _________, 20______.

 

Signature of Principal

 

Acknowledged before me at _____________ on _______________.

 

Signature of Officer or Notary

If a person other than the principal executes the signature for the principal, the person may not be a person who is appointed an agent in the POA and the following signature line and notary verification must also be completed:

 

IN WITNESS WHEREOF, I have hereunto signed my name this ____ day of _________, 20______.

 

Signature of person signing at the request of [name of principal]

Printed name of person signing:                                                       

 

 

Acknowledged before me at _____________ on _______________.

 

Signature of Officer or Notary

 

 

Each of the following provisions may be included in a statutory form POA:

 

YOU MAY DESIGNATE AN ALTERNATE AGENT.  ANY ALTERNATE YOU DESIGNATE WILL BE ABLE TO EXERCISE THE SAME POWERS AS THE AGENT(S) YOU NAMED AT THE BEGINNING OF THIS DOCUMENT.  IF YOU WISH TO DESIGNATE AN ALTERNATE OR ALTERNATES, COMPLETE THE FOLLOWING:

If the agent(s) named at the beginning of this document is unable or unwilling to serve or continue to serve, then I appoint the following agent to serve with the same powers:

First alternate or successor agent:                                                                                    (name and address)

Second alternate or successor agent:                                                                               

(name and address)

 

YOU MAY NOMINATE A GUARDIAN OR CONSERVATOR.  IF YOU WISH TO NOMINATE A GUARDIAN OR CONSERVATOR, COMPLETE THE FOLLOWING:

In the event that a court decides that it is necessary to appoint a guardian or conservator for me, I hereby nominate [name and address of person nominated] to be considered by the court for appointment to serve as my guardian or conservator or in any similar representative capacity.

 

 

The law specifies the effect if the principal fails to mark certain sections in the statutory form POA.

 

The definitions of the general powers granted to the agent in a statutory form POA have been amended.

 

A power of attorney that satisfies the above requirements is not prevented from being a statutory form power of attorney by the fact that it also contains additional language that relieves an agent of liability for breach of a duty except to the extent the provision

  • Relieves the agent of liability for breach of duty committed dishonestly, with an improper motive, or with reckless indifference to the purposes of the power of attorney or the best interest of the principal; or
  • Was inserted as a result of an abuse of a confidential or fiduciary relationship with the principal.

 

The law also revises the procedures for executing and revoking a power of attorney and establishing the incapacity of a principal.