Powers of Attorney

A Power of Attorney is an important tool in Estate Planning as well as in situations where the health of an individual is deteriorating.

During the 2018 session, the Kentucky General Assembly made significant changes to Kentucky laws relating to powers of attorney. The changes went into effect on July 14, 2018 and apply to all powers of attorney executed after that date. Powers of attorney executed prior to July 14, 2018 are still good after July 13, 2018, if its execution complies with Kentucky laws as they existed at the time of the execution of the power of attorney.

As under prior law, a power of attorney takes effect when executed, unless the principal provides in the power of attorney that it becomes effective at a future date, or upon the occurrence of a future event or contingency. The new law goes into detail about how it is determined if the future
event or contingency has occurred.

A power of attorney terminates when:

1. The principal dies;

2. The principal becomes incapacitated, unless the power of attorney is durable;

3. The principal revokes the power of attorney or, if the power of attorney was filed, the principal revokes the power of attorney where it is filed;

4. The power of attorney provides that it terminates;

5. The purpose of the power of attorney is accomplished;

6. The principal revokes the attorney-in-fact’s authority or the attorney-in-fact dies, becomes incapacitated, or resigns, and the power of attorney does not provide for
another attorney-in-fact to act under the power of attorney.

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

Under the new law, a power of attorney is durable, which means it continues in effect in spite of the principal being determined to be incapacitated, unless it expressly provides it is terminated by the incapacity of the principal. The is the reverse of the old law which stated that a power of attorney was not durable unless it expressly stated it was.

One of the most drastic changes is that all powers of attorney executed after July 13, 2018 must be executed in the presence of two disinterested witnesses and acknowledged before a notary public. Having two (2) witnesses is something already required in most other states. Who qualifies as a “disinterested witness” is not defined in the new law. It certainly can’t be the attorney(s)-in-fact named in the power of attorney!

If the power of attorney is not, or (presumably) cannot be, signed by the principal (the person who grants authority to an attorney-in-fact or agent in the power of attorney), another significant change is that it can be signed in the principal’s conscience presence by another individual directed by the principal to sign the principal’s name on the power of attorney document. Under the new law, a signature on the power of attorney is presumed to be genuine if the principal acknowledges his or her signature before a notary public or other person authorized by law to take acknowledgments.

Except as otherwise provided by statute for recording documents, a photocopy or electronically transmitted copy of an original power of attorney has the same effect as the original.

In a power of attorney, the principal may nominate a limited conservator, conservator, limited guardian or guardian of the persons estate or a limited guardian or guardian of the person for consideration by the Court, if such appointment becomes necessary for the principal.

If a Court appoints a limited conservator, conservator, limited guardian or guardian for the principal’s estate, a power of attorney previously executed by the principal is not terminated and the attorney-in-fact’s authority under that power of attorney is continued, unless limited, superseded or terminated by the court or by the terms of the power of attorney or the attorney-in-fact dies, becomes incapacitated or resigns.

If a principal designates two or more attorneys-in-fact each attorney in fact may exercise their authority independently unless the power of attorney provides otherwise. A principal can grant authority to designate one or more successor attorneys-in-fact to an attorney-in-fact or other person designated by name, office or function.

An important new section of Kentucky’s power of attorney law provides a procedure for determining whether a presented power of attorney should be acceptrd by a third party. In general, a person may accept an acknowledged power of attorney as presented or require a certification, translation or opinion of counsel not longer then seven (7) business days after presentation of the power of attorney for acceptance.

If a certification, translation or opinion of counsel is requested, the person shall accept the power of attorney with in five (5) business days after the receipt of the certification, translation or opinion of council. However, the person is not required to accept an acknowledged power of attorney in certain situations listed in the statute..

An attorney-in-fact is required to keep a record of all receipts, disbursements and transactions made on behalf of the principal. The attorney in fact is also required to preserve the principal’s estate.

A power of attorney given to a spouse terminates when a proceeding for divorce or annulment of a marriage or legal separation is filed, unless the power of attorney document provides otherwise.

Just as under the present law, a power of attorney is not required by the new law to be recorded, unless it is being use to convey, release or transfer any interest in real estate.

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