![]() ![]() Use of the statutory form is optional, so there is no reason why an attorney could not continue to use the crossing-out approach. ![]() Although this is a matter of personal preference, having one’s clients sign a form that looks like the statutory form is likely to increase the likelihood of third party acceptance. Here are practice tips about the new form: What is the effect of this? Unless the principal adds specific authority in the “special instructions” section of the form, presumably the agent has no authority to act, even though the principal must have intended to give the agent some authority or he or she would not have signed the power of attorney in the first place.Īs troublesome as the 2013 changes to the form are, they should present no insurmountable hurdle for attorneys familiar with this area of the law. What happens if no powers are initialed? Since these forms are used by non-lawyers, it is inevitable that powers of attorney will be signed with no powers initialed. For this reason, it is important for any attorney wishing for his or her client to have a general power of attorney to specifically add language to the form to accomplish this purpose.Ģ. Rather, the agent’s authority apparently will be limited to the enumerated statutory powers even if “N” is initialed. It permits the principal to initial line “N” – “all of the above powers listed in “A” through “M.” However, this does not make the power of attorney a general power of attorney and there is no similar provision stating that it means the agent has the power to perform or undertake any action the principal could perform or undertake if personally present. If no power listed above is crossed out, this document shall be construed and interpreted as a general power of attorney and my agent (attorney in fact) shall have the power and authority to perform or undertake any action I could perform or undertake if I were personally present. The former cross-out form contains this statement: In addition to increasing the chances of fraud (since it is easier for a bad guy to add initials to a form than to remove a cross-out mark), the new initialing approach creates these two traps for the unwary:ġ. However, to the extent that the statements are not identical to current statutory law, does including these statements in the form create additional statutory or contractual duties and liabilities? If there are inconsistencies, which controls – existing law or the disclosure statements in the form? To a large extent, these statements are consistent with the Durable Power of Attorney Act and fiduciary law. ![]()
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