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Frequently, our office is asked about a Power of Attorney and its applicability as a commonly used legal document. A Power of Attorney is legal document that assigns another person as agent to take care of your affairs as the principal. The person assigned, your agent, is typically responsible for affairs, usually financial or healthcare matters, on your behalf as enumerated in the Power of Attorney document. Like all other legal documents, a person must be competent to enter into and grant a Power of Attorney.
The authority granted under any Power of Attorney will vary depending upon the exact language used. However, a General Power of Attorney usually grants someone else authority to handle all matters as if the person granting the Power of Attorney were conducting the business himself. A Power of Attorney is required to deal with the property of the other person using the utmost good faith to handle matters for the best interests of the person granting the Power of Attorney.
If someone with a Power of Attorney does not act in good faith or outside the scope of the Power of Attorney, that person may be accountable for a violation of fiduciary duty. Any civil action brought for a violation must be made within five years of the breach.
In 2018, Kentucky enacted the Uniform Power of Attorney Act to further enumerate the law involving Power of Attorney documents. Of the most important provisions, Power of Attorneys are durable and continue through incapacity of the principal until death unless the Power of Attorney specifically provides to the contrary. In addition, a Power of Attorney now must be signed by two (2) disinterested witnesses and notarized by a Notary Public. However, Power of Attorneys executed before July 13, 2018 are still valid even if they do not comply with the requirements under the new law. However, it is generally recommended to have a Power of Attorney updated every few years or when there are significant changes in your life.
A common question our office receives is when does a Power of Attorney end. A Power of Attorney ends or is terminated in a variety of instances. Some of those instances include: (1) upon death; (2) upon granting by the Courts of a guardianship and conservatorship; and (3) upon termination of the Power of Attorney by the person who granted the authority.
I hope this information is interesting and helpful. If you have any topics you would like to have covered in this column, please contact my office by e-mail at email@example.com, by phone at 491-7700 or by regular mail addressed to 319 York Street, Newport, Kentucky 41071.