New Hampshire Legislative Update

New Hampshire Legislative Update

The New Hampshire legislature recently adopted the Uniform Power of Attorney Act (the “Act”), effective January 1, 2018.

 

New Hampshire Senate Bill 230

 

The Act spells out, among other things, execution requirements, powers of agents, termination of a power of attorney and agent liability.

 

“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, co-agent, successor agent, and a person to whom an agent’s authority is delegated.

 

“Durable” (with respect to a power of attorney) means not terminated by the principal’s incapacity.

 

“Electronic” means relating to technology having electrical, digital, magnetic, wireless, optical, electromagnetic, or similar capabilities.

 

“Incapacity” means inability of an individual to manage property or business affairs because the individual:

  • Has an impairment in the ability to receive and evaluate information or make or communicate decisions even with the use of technological assistance; or
  • Is missing, detained (including incarcerated in a penal system), or outside the U.S. and unable to return.

 

“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.

 

“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.

 

“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.

 

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

 

A general power of attorney or a power of attorney to convey real estate must be signed (other than by electronic signature) by the principal or in the principal’s conscious presence by another individual directed by the principal to sign the principal’s name and must be acknowledged before a notary public or other individual authorized by law to take acknowledgments.  Any other power of attorney does not have the limitation with regard to electronic signature.

 

A disclosure statement in substantially the following form, signed (other than by electronic signature) by the principal (or by another individual directed by the principal) must be affixed to the power of attorney:

 

INFORMATION CONCERNING THE POWER OF ATTORNEY

THIS IS AN IMPORTANT LEGAL DOCUMENT.  BEFORE SIGNING THIS DOCUMENT YOU SHOULD KNOW THESE IMPORTANT FACTS:

 

Notice to the Principal:  As the “Principal,” you are using this Power of Attorney to grant power to another person (called the “Agent”) to make decisions, including, but not limited to, decisions concerning your money, property, or both, and to use your money, property, or both on your behalf.  If this Power of Attorney does not limit the powers that you give to your Agent, your Agent will have broad and sweeping powers to sell or otherwise dispose of your property, and to spend your money without advance notice to you or approval by you. Unless you have expressly provided otherwise in this Power of Attorney, your Agent will have these powers before you become incapacitated, and unless you have expressly provided otherwise in this Power of Attorney, your Agent will continue to have these powers after you become incapacitated. You have the right to retain this Power of Attorney and to release it later or to request that another person retain this Power of Attorney on your behalf and release it only if one or more conditions specified in advance by you are satisfied. You have the right to revoke or take back this Power of Attorney at any time, so long as you are of sound mind. If there is anything about this Power of Attorney that you do not understand, you should seek professional advice.

 

Except as otherwise provided in the power of attorney or by law, a photocopy of an electronically transmitted copy of an original power of attorney has the same effect as the original.

 

A power of attorney terminates when:

  • The principal dies;
  • The principal becomes incapacitated, if it is not durable;
  • The principal revokes it;
  • It provides that it terminates;
  • The purpose of the power of attorney is accomplished; or
  • The principal revokes the agent’s authority or the agent dies, becomes incapacitated, or resigns, and the power of attorney does not provide for another agent to act.

 

An agent’s authority terminates when:

  • The principal revokes the authority;
  • The agent dies, becomes incapacitated, or resigns;
  • A petition for divorce, annulment, separation or a decree of nullity is filed with respect to the agent’s marriage to the principal, unless the power of attorney otherwise provides; or
  • The power of attorney terminates.

 

The execution of a power of attorney does not revoke a power of attorney previously executed by the principal unless the subsequent power of attorney provides that the previous one is revoked or that all other powers of attorney are revoked.

 

A principal may designate 2 or more persons to act as co-agents.   Unless the power of attorney otherwise provides, the coagents must exercise their authority jointly.

 

A person designated as agent under a general power of attorney shall have no authority to act as agent unless, at any time prior to exercising the power granted under the general power of attorney and not necessarily at the time the general power of attorney is signed by the principal, the person has signed (other than by electronic signature) and affixed to the general power of attorney an acknowledgment in substantially the following form:

 

I,_______, have read the attached power of attorney and am the person identified as the agent for the principal. I hereby acknowledge that when I act as agent, I am given power under the power of attorney to make decisions about money, property, or both belonging to the principal, and to spend the principal’s money, property, or both on the principal’s behalf, in accordance with the terms of the power of attorney. When acting as agent, I have duties (called “fiduciary duties”) to act in the principal’s best interest, to act in good faith, and to act only within the scope of authority granted in the power of attorney, as well as other duties imposed by law to the extent not provided otherwise in the power of attorney. As an agent, I am not entitled to use the money or property for my own benefit or to make gifts to myself or others unless the power of attorney specifically gives me the authority to do so. As an agent, my authority under the power of attorney will end when the principal dies and I will not have authority to manage or dispose of any property or administer the estate of the principal. If I violate a fiduciary duty under the power of attorney, I may be liable for damages and may be subject to criminal prosecution. If there is anything about the power of attorney, or my duties under it, that I do not understand, I understand that I should seek professional advice.

 

The Act sets forth the agent’s duties and liabilities, and sets forth the method that an agent may resign.

 

A person that in good faith accepts an acknowledged power of attorney without actual knowledge otherwise may presume:

  • That the signature is genuine;
  • That the power of attorney is genuine, valid, and still in effect; and
  • That the agent’s authority is genuine, valid, and still in effect.

 

A person that is asked to accept an acknowledged power of attorney 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 power of attorney;
  • An English translation of the power of attorney if the power of attorney contains in whole or in part, language other than English; and
  • An opinion of counsel as to any matter of law concerning the power of attorney 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 requested under this section must be provided at the principal’s expense unless the request is made more than 7 business days after the power of attorney is presented for acceptance.

 

Except as provided below:

  • A person shall either accept an acknowledged power of attorney or request a certification, a translation, or an opinion of counsel no later than 7 business days after presentation of the power of attorney for acceptance;
  • If a person requests a certification, a translation, or an opinion of counsel, the person shall accept the power of attorney no later than 5 business days after receipt of the certification, translation, or opinion of counsel; and
  • A person may not require an additional or different form of power of attorney for authority granted in the power of attorney presented.

 

A person is not required to accept an acknowledged power of attorney 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 the principal in the same circumstances would be inconsistent with federal law, including, without limitation, federal rules and federal regulations;
  • The person has actual knowledge of the termination of the agent’s authority or of the power of attorney 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 appropriate adult protective services or law enforcement 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 power of attorney (except as provided above):

  •  Is subject to a court order mandating acceptance of the power of attorney; and
  • May be held liable for reasonable attorney’s fees and costs incurred in any action or proceeding that confirms the validity of the power of attorney or mandates acceptance of the power of attorney.

 

The Act does not supersede any other law applicable to financial institutions or other entities, and the other law controls if inconsistent with the Act.

 

In order for the agent to have authority to affect an inter vivos trust, making a gift, or changing beneficiary designations, the power of attorney must specifically grant the authority.

 

Except as set forth in the limitations, a power of attorney grants an agent authority to do all acts that a principal could do.  The Act provides a detailed definition for certain words or phrases in a power of attorney grant of authority for:

  • 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
  • Gifts

 

The Act sets forth a statutory form that may be used (but is not mandatory) in order to create a valid power of attorney, as well as a form for agent’s certification as to the validity of a power of attorney.