Hawaii Legislative Update

Hawaii Legislative Update

The Hawaii legislature recently amended its laws governing mortgage servicers and foreclosures, effective April 23, 2014. Hawaii also enacted the Hawaii Uniform Power of Attorney Act (the “Act”), effective April 17, 2014.

 

HAWAII HOUSE BILL 2513

 

The attorney’s affirmation that the attorney has verified the accuracy of the documents submitted in a judicial foreclosure must be filed with the court at the time that the foreclosure action is commenced.

 

HAWAII SENATE BILL 2818

 

A mortgage servicer license expires on December 31 (previously June 30) of each calendar year.  Such license may be renewed by filing a renewal statement on a form prescribed by Nationwide Mortgage Licensing System and Registry or by the Commissioner of Financial Institutions and paying a renewal fee of $425 at least 4 weeks prior to December 31 (previously at least 4 weeks prior to the renewal period for licensure for the following year).

 

HAWAII SENATE BILL 2229

 

A power of attorney created under the Act is durable unless the power of attorney expressly provides that it is terminated by the incapacity of the principal.

 

A power of attorney must be signed by the principal or in the principal’s conscious presence by another individual directed by the principal to sign the principal’s name on the power of attorney.  A signature on a power of attorney is presumed to be genuine if the principal acknowledges the signature before a notary public or other individual authorized by law to take acknowledgments..

 

A power of attorney executed in Hawaii on or after January 1, 2015, is valid if its execution complies with the above requirements.  A power of attorney executed outside of Hawaii is valid in Hawaii if, when the power of attorney was executed, the execution complied with:

  • The law of the jurisdiction that determines the meaning and effect of the power of attorney; or
  • The requirements for a military power of attorney under federal law.

 

A photocopy or electronically transmitted copy of an original power of attorney has the same effect as the original.

 

The meaning and effect of a power of attorney is determined by the law of the jurisdiction indicated in the power of attorney and, in the absence of an indication of jurisdiction, by the law of the jurisdiction in which the power of attorney was executed.

 

Unless the power of attorney otherwise provides, language in a power of attorney granting general authority with respect to real property authorizes:

  • The agent to demand, buy, lease, receive, accept as a gift or as security for an extension of credit, or otherwise acquire or reject an interest in real property or a right incident to real property;
  • The agent to:
    • Sell;
    • Exchange;
    • Convey with or without covenants, representations, or warranties;
    • Quitclaim;
    • Release;
    • Surrender;
    • Retain title for security;
    • Encumber;
    • Partition;
    • Consent to partitioning;
    • Be subject to an easement or covenant;
    • Subdivide;
    • Apply for zoning or other governmental permits;
    • Plat or consent to platting;
    • Develop;
    • Grant an option concerning;
    • Lease;
    • Sublease;
    • Contribute to an entity in exchange for an interest in that entity; or
    • Otherwise grant or dispose of an interest in real property or a right incident to real property;
  • The agent to pledge or mortgage an interest in real property or right incident to real property as security to borrow money or pay, renew, or extend the time of payment of a debt of the principal or a debt guaranteed by the principal;
  • The agent to release, assign, satisfy, or enforce by litigation or otherwise a mortgage, deed of trust, conditional sale contract, encumbrance, lien, or other claim to real property which exists or is asserted;
  • The agent to manage or conserve an interest in real property or a right incident to real property owned or claimed to be owned by the principal, including:
    • Insuring against liability or casualty or other loss;
    • Obtaining or regaining possession of or protecting the interest or right by litigation or otherwise;
    • Paying, assessing, compromising, or contesting taxes or assessments, or applying for and receiving refunds in connection with taxes; and
    • Purchasing supplies, hiring assistance or labor, and making repairs or alterations to the real property;
  • The agent to use, develop, alter, replace, remove, erect, or install structures or other improvements upon real property in or incident to which the principal has, or claims to have, an interest or right;
  • The agent to participate in a reorganization with respect to real property or an entity that owns an interest in or right incident to real property and receive, hold, and act with respect to stocks and bonds or other property received in a plan of reorganization, including:
    • By selling or otherwise disposing of them;
    • By exercising or selling an option, right of conversion, or similar right with respect to them; and
    • By exercising any voting rights in person or by proxy;
  • The agent to change the form of title of an interest in or right incident to real property; and
  • The agent to dedicate to public use, with or without consideration, easements or other real property in which the principal has, or claims to have, an interest.

 

A document substantially in the following form may be used to create a statutory form power of attorney that has the meaning and effect prescribed by the Act:

 

STATE OF HAWAII

STATUTORY FORM POWER OF ATTORNEY

IMPORTANT INFORMATION

 

This power of attorney authorizes another person (your agent) to make decisions concerning your property for you (the principal).  Your agent will be able to make decisions and act with respect to your property, including your money, whether or not you are able to act for yourself.  The meaning of authority over subjects listed on this form is explained in the Uniform Power of Attorney Act in chapter 551D, Hawaii Revised Statutes.

 

This power of attorney does not authorize the agent to make health care decisions for you.

 

You should select someone you trust to serve as your agent.  Unless you specify otherwise, generally the agent’s authority will continue until you die or revoke the power of attorney or the agent resigns or is unable to act for you.

 

Your agent is entitled to reasonable compensation unless you state otherwise in the Special Instructions.

 

This form provides for designation of one agent.  If you wish to name more than one agent, you may name a co-agent in the Special Instructions.  Co-agents are not required to act together unless you include that requirement in the Special Instructions.

 

If your agent is unable or unwilling to act for you, your power of attorney will end unless you have named a successor agent.  You may also name a second successor agent.

 

This power of attorney becomes effective immediately unless you state otherwise in the Special Instructions.

 

If you have questions about the power of attorney or the authority you are granting to your agent, you should seek legal advice before signing this form.

 

DESIGNATION OF AGENT

 

I,                                                                                   (name of principal) name the following person as my agent:

 

Name of Agent: ___________________________________________

Agent’s Address: __________________________________________

Agent’s Telephone Number: _________________________________

 

DESIGNATION OF SUCCESSOR AGENT(S) (OPTIONAL)

 

If my agent is unable or unwilling to act for me, I name as my successor agent:

 

Name of Successor Agent: _________________________________

Successor Agent’s Address: ________________________________

Successor’s Agent’s Telephone Number: ______________________

 

If my successor agent is unable or unwilling to act for me, I name as my second successor agent:

 

Name of Second Successor Agent: ___________________________

Second Successor Agent’s Address: __________________________

Second Successor Agent’s Telephone Number: _________________

 

 

GRANT OF GENERAL AUTHORITY

 

I grant my agent and any successor agent general authority to act for me with respect to the following subjects as defined in the Uniform Power of Attorney Act in chapter 551D, Hawaii Revised Statutes.

 

(Initial each subject you want to include in the agent’s general authority. If you wish to grant general authority over all of the subjects you may initial “All Preceding Subjects” instead of initialing each subject.)

 

(___)    Real Property

(___)    Tangible Personal Property

(___)    Stocks and Bonds

(___)    Commodities and Options

(___)    Banks and Other Financial Institutions

(___)    Operation of Entity or Business

(___)    Insurance and Annuities

(___)    Estates, Trusts, and Other Beneficial Interests

(___)    Claims and Litigation

(___)    Personal and Family Maintenance

(___)    Benefits from Governmental Programs or Civil or Military Service

(___)    Retirement Plans

(___)    Taxes

(___)    All Preceding Subjects

 

GRANT OF SPECIFIC AUTHORITY (OPTIONAL)

 

My agent MAY NOT do any of the following specific acts for me UNLESS I have INITIALED the specific authority listed below:

 

(CAUTION: Granting any of the following will give your agent the authority to take actions that could significantly reduce your property or change how your property is distributed at your death.  INITIAL ONLY the specific authority you WANT to give your agent.)

 

(___)    Create, amend, revoke, or terminate an inter vivos trust

(___)    Make a gift, subject to the limitations of the Uniform Power of Attorney Act under section -47, Hawaii Revised Statutes, and any special instructions in this power of attorney

(___)    Create or change rights of survivorship

(___)    Create or change a beneficiary designation

(___)    Authorize another person to exercise the authority granted under this 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

 

LIMITATION ON AGENT’S AUTHORITY

 

An agent that is not my ancestor, spouse, or descendant MAY NOT use my property to benefit the agent or a person to whom the agent owes an obligation of support unless I have included that authority in the Special Instructions.

 

SPECIAL INSTRUCTIONS (OPTIONAL)

 

You may give special instructions on the following lines:

 

 

 

EFFECTIVE DATE

 

This power of attorney is effective immediately unless I have stated otherwise in the Special Instructions.

 

NOMINATION OF CONSERVATOR OR GUARDIAN (OPTIONAL)

 

If it becomes necessary for a court to appoint a conservator of my estate or guardian of my person, I nominate the following person(s) for appointment:

 

Name of Nominee for conservator or guardian of my estate: ______________________

Nominee’s Address: _______________________________________________________

Nominee’s Telephone Number: ______________________________________________

Name of Nominee for guardian of my person: _________________________________

Nominee’s Address: _______________________________________________________

Nominee’s Telephone Number: ______________________________________________

 

RELIANCE ON THIS POWER OF ATTORNEY

 

Any person, including my agent, may rely upon the validity of this power of attorney or a copy of it unless that person knows it has terminated or is invalid.

 

SIGNATURE AND ACKNOWLEDGMENT

 

________________________

Your Signature                                                             Date

 

________________________________________________________________________

Your Name Printed

 

________________________________________________________________________

Your Address

 

________________________________________________________________________

Your Telephone Number

 

State of _______________________

 

County of

 

This document was acknowledged before me on __________________ (Date), by ______________________ (Name of Principal)

 

_______________________________ (Seal, if any)

Signature of Notary

 

My commission expires: ______________________

 

This document prepared by: __________________________________________

 

IMPORTANT INFORMATION FOR AGENT

 

Agent’s Duties

 

When you accept the authority granted under this power of attorney, a special legal relationship is created between you and the principal.  This relationship imposes upon you legal duties that continue until you resign or the power of attorney is terminated or revoked. You must:

(1) Do what you know the principal reasonably expects you to do with the principal’s property or, if you do not know the principal’s expectations, act in the principal’s best interest;

(2) Act in good faith;

(3) Do nothing beyond the authority granted in this power of attorney; and

(4) Disclose your identity as an agent whenever you act for the principal by writing or printing the name of the principal and signing your own name as “agent” in the following manner:

 

__________________ (Principal’s Name) by ______________________ (Your Signature) as Agent

 

Unless the Special Instructions in this power of attorney state otherwise, you must also:

(1) Act loyally for the principal’s benefit;

(2) Avoid conflicts that would impair your ability to act in the principal’s best interest;

(3) Act with care, competence, and diligence;

(4) Keep a record of all receipts, disbursements, and transactions made on behalf of the principal;

(5) Cooperate with any person that has authority to make health care decisions for the principal to do what you know the principal reasonably expects or, if you do not know the principal’s expectations, to act in the principal’s best interest; and

(6) Attempt to preserve the principal’s estate plan if you know the plan and preserving the plan is consistent with the principal’s best interest.

 

Termination of Agent’s Authority

 

You must stop acting on behalf of the principal if you learn of any event that terminates this power of attorney or your authority under this power of attorney. Events that terminate a power of attorney or your authority to act under a power of attorney include:

(1) Death of the principal;

(2) The principal’s revocation of the power of attorney or your authority;

(3) The occurrence of a termination event stated in the power of attorney;

(4) The purpose of the power of attorney is fully accomplished; or

(5) If you are married to the principal, a legal action is filed with a court to end your marriage, or for your legal separation, unless the Special Instructions in this power of attorney state that such an action will not terminate your authority.

 

Liability of Agent

 

The meaning of the authority granted to you is defined in the Uniform Power of Attorney Act, in chapter 551D, Hawaii Revised Statutes.  If you violate the Uniform Power of Attorney Act in chapter 551D, Hawaii Revised Statutes, or act outside the authority granted, you may be liable for any damages caused by your violation.

 

If there is anything about this document or your duties that you do not understand, you should seek legal advice.

 

The following optional form may be used by an agent to certify facts concerning a power of attorney:

 

AGENT’S CERTIFICATION AS TO THE VALIDITY OF POWER OF ATTORNEY ANDAGENT’S AUTHORITY

 

State of ___________________________

County of _________________________

 

I, ______________________ (Name of Agent), certify under penalty of perjury that ________________________ (Name of Principal) granted me authority as an agent or successor agent in a power of attorney dated _________________.

 

I further certify that to my knowledge:

(1) The Principal is alive and has not revoked the Power of Attorney or my authority to act under the Power of Attorney and the Power of Attorney and my authority to act under the Power of attorney have not terminated;

(2) If the Power of Attorney was drafted to become effective upon the happening of an event or contingency, the event or contingency has occurred;

(3) If I was named as a successor agent, the prior agent is no longer able or willing to serve; and

(4)___________________________________________________________________________________________________________________________________________________________________________________________________________.  (Insert other relevant statements)

 

SIGNATURE AND ACKNOWLEDGMENT

 

_____________________________                                                  __________________

Agent’s Signature                                                                                             Date

 

_____________________________

Agent’s Name Printed

 

________________________________________________________________________

Agent’s Address

 

______________________________

Agent’s Telephone Number

 

 

This document was acknowledged before me on_______________________ (Date), by

____________________________   (Name of Agent).

 

 

___________________________ (Seal, if any)

Signature of Notary

 

My commission expires: ___________________________

 

This document prepared by:________________________________________________