Wyoming Legislative Update

Wyoming Legislative Update

The Wyoming legislature recently enacted Uniform Power of Attorney Act (the “Act”), effective January 1, 2018.

 

Wyoming Senate File 105

 

The following definitions, among others, are used in the Act:

 

“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.  “Agent” includes an original agent, coagent, successor agent, and a person to which 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 a person to manage property or business affairs because the person:

  • 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.

 

“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 power of attorney existing on January 1, 2018, is durable in accordance with the law existing on the day of execution of the power of attorney.

 

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

 

Except as otherwise provided 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;
  • An action is filed for the dissolution or annulment of the agent’s marriage to the principal or an action is filed for legal separations, 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 coagents.  Unless the power of attorney otherwise provides, each coagent may exercise its authority independently.

 

Except as otherwise provided in the power of attorney, a person accepts appointment as an agent under a power of attorney by exercising authority or performing duties as an agent or by any other assertion or conduct indicating acceptance.

 

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

 

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; and
  • An English translation of the power of attorney if the power of attorney contains in whole or in part, language other than English.

 

A certification or translation requested is to be provided at the principal’s expense.

 

Except as provided below, a person that is asked to accept an acknowledged power of attorney must:

  • Accept the acknowledged power of attorney or request a certification or translation not later than 7 business days after presentation of the power of attorney for acceptance;
  • If the person requests a certification or translation, accept the power of attorney not later than 5 business days after receipt of the certification or translation; and
  • Not require an additional or different form of power of attorney for authority granted in the power of attorney presented.

 

A person may refuse 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;
  • 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 or translation 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 or translation has been requested or provided;
  • The person makes, or has actual knowledge that another person has made, a report to a governmental agency having authority to protect the welfare of the principal 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 who 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
  • Liability 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.

 

The Act sets forth the authorities that the agent may exercise only if the power of attorney expressly grants the authority to the agent.  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.