SF 1712

1st Engrossment - 86th Legislature (2009 - 2010) Posted on 02/09/2010 02:23am

A bill for an act
relating to powers of attorney; creating an alternative statutory short form for
military members who are in active service; amending Minnesota Statutes
2008, sections 523.02; 523.131; 523.16; 523.20; 523.21; 523.23, subdivision 3;
proposing coding for new law in Minnesota Statutes, chapter 523.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:

Section 1.

Minnesota Statutes 2008, section 523.02, is amended to read:

523.02 COMMON LAW, PREEXISTING AND FOREIGN POWERS OF
ATTORNEY.

A written power of attorney is a validly executed power of attorney for the purposes
of sections 523.01 to 523.24, and is subject to the provisions of sections 523.01 to 523.24,
if it is validly created pursuant to: (1) the law of Minnesota as it existed prior to the
enactment of sections 523.01 to 523.24 if it was executed prior to August 1, 1984; (2) the
common law; or (3) the law of another state or country. A power of attorney executed
before August 1, 1992, in conformity with section 523.23 as that statute existed before
that date is a statutory short form power of attorney. A power of attorney executed on
or after August 1, 1992, in conformity with section 523.23 new text begin or 523.231 new text end as it exists on or
after that date is a statutory short form power of attorney. A provision in a power of
attorney that would make it a durable power of attorney under section 523.07 but for its
use of the term "disability" in place of "incapacity or incompetence" is nonetheless a
durable power of attorney.

Sec. 2.

Minnesota Statutes 2008, section 523.131, is amended to read:

523.131 QUALIFICATION OF SUCCESSOR ATTORNEY-IN-FACT IN
STATUTORY SHORT FORM POWER OF ATTORNEY.

If two or more attorneys-in-fact are originally appointed and one dies, resigns, or is
unable to serve, a successor attorney-in-fact named in a power of attorney executed in
conformity with section 523.23 new text begin or 523.231 new text end replaces the attorney-in-fact who dies, resigns,
or is unable to serve. If the original attorneys-in-fact were required to act jointly, the
attorneys-in-fact acting at any time must act jointly. If the original attorneys-in-fact were
allowed to act individually, the attorneys-in-fact acting at any time may act individually.
If attorneys-in-fact acting at any time are required to act jointly, and there is only one
remaining attorney-in-fact because of the death, resignation, or inability to serve of all
other original and successor attorneys-in-fact, the remaining attorney-in-fact may act
alone.

Sec. 3.

Minnesota Statutes 2008, section 523.16, is amended to read:

523.16 AFFIDAVIT AS PROOF OF AUTHORITY OF ATTORNEY-IN-FACT.

new text begin Subdivision 1. new text end

new text begin Multiple attorneys-in-fact. new text end

If the attorney-in-fact exercising a
power pursuant to a power of attorney has authority to act as a result of the death,
incompetency, or resignation of one or more attorneys-in-fact named in the power of
attorney, an affidavit executed by the attorney-in-fact setting forth the conditions precedent
to the attorney-in-fact's authority to act under the power of attorney and stating that those
conditions have occurred is conclusive proof as to any party relying on the affidavit of the
occurrence of those conditions.

new text begin Subd. 2. new text end

new text begin Attorney-in-fact for member of military. new text end

new text begin If an attorney-in-fact
exercising a power pursuant to a power of attorney executed by a member of the military
has authority to act under section 523.231, subdivision 3, an affidavit executed by the
attorney-in-fact setting forth the conditions precedent to the authority to act and stating the
existence of those conditions is conclusive proof as to any party relying on the affidavit of
the existence of those conditions.
new text end

Sec. 4.

Minnesota Statutes 2008, section 523.20, is amended to read:

523.20 LIABILITY OF PARTIES REFUSING AUTHORITY OF
ATTORNEY-IN-FACT TO ACT ON PRINCIPAL'S BEHALF.

Any party refusing to accept the authority of an attorney-in-fact to exercise a power
granted by a power of attorney which (1) is executed in conformity with section 523.23 new text begin
or 523.231 new text end ; (2) contains a specimen signature of the attorney-in-fact authorized to act;
(3) with regard to the execution or delivery of any recordable instrument relating to real
property, is accompanied by affidavits that satisfy the provisions of section 523.17;
(4) with regard to any other transaction, is signed by the attorney-in-fact in a manner
conforming to section 523.18; and (5) when applicable, is accompanied by an affidavit
and any other document required by section 523.16, is liable to the principal and to the
principal's heirs, assigns, and representative of the estate of the principal in the same
manner as the party would be liable had the party refused to accept the authority of the
principal to act on the principal's own behalf unless: (1) the party has actual notice of the
revocation of the power of attorney prior to the exercise of the power; (2) the duration
of the power of attorney specified in the power of attorney itself has expired; deleted text begin or deleted text end (3) the
party has actual knowledge of the death of the principal or, if the power of attorney is not a
durable power of attorney, actual notice of a judicial determination that the principal is
legally incompetent new text begin ; or (4) in the case of a power of attorney executed by a member of the
military under section 523.231, the party has actual knowledge that the power of attorney
is not in effect under section 523.231, subdivision 3 new text end . This provision does not negate any
liability which a party would have to the principal or to the attorney-in-fact under any
other form of power of attorney under the common law or otherwise.

Sec. 5.

Minnesota Statutes 2008, section 523.21, is amended to read:

523.21 DUTIES OF AN ATTORNEY-IN-FACT.

new text begin (a) new text end The attorney-in-fact shall keep complete records of all transactions entered into
by the attorney-in-fact on behalf of the principal. new text begin Except as provided in paragraph (b),
new text end the attorney-in-fact has no duty to render an accounting of those transactions unless:
(1) requested to do so at any time by the principal; (2) the instrument conferring the
power of attorney requires that the attorney-in-fact render accountings and specifies to
whom the accounting must be delivered; or (3) the attorney-in-fact has reimbursed the
attorney-in-fact for any expenditure the attorney-in-fact has made on behalf of the
principal. A written statement that gives reasonable notice of all transactions entered into
by the attorney-in-fact on behalf of the principal is an adequate accounting.

new text begin (b) An attorney-in-fact acting under a power of attorney executed under section
523.231 has a duty to render an accounting unless the power of attorney specifies that an
accounting is not required. To the extent that the power of attorney document does not
specify either the frequency of or to whom the accounting must be made, the accounting
must be made to the principal on a quarterly basis.
new text end

new text begin (c) new text end The persons entitled to examine and copy the records of the attorney-in-fact are
the principal, a person designated by the principal in the document creating the power
of attorney as the recipient of accountings required by this section, and the guardian or
conservator of the estate of the principal while the principal is living and the personal
representative of the estate of the principal after the death of the principal.

new text begin (d) new text end The attorney-in-fact has no affirmative duty to exercise any power conferred
upon the attorney-in-fact under the power of attorney. In exercising any power conferred
by the power of attorney, the attorney-in-fact shall exercise the power in the same manner
as an ordinarily prudent person of discretion and intelligence would exercise in the
management of the person's own affairs and shall have the interests of the principal utmost
in mind. The attorney-in-fact is personally liable to any person, including the principal,
who is injured by an action taken by the attorney-in-fact in bad faith under the power of
attorney or by the attorney-in-fact's failure to account when the attorney-in-fact has a
duty to account under this section.

Sec. 6.

Minnesota Statutes 2008, section 523.23, subdivision 3, is amended to read:

Subd. 3.

Requirements.

new text begin Except as otherwise provided in section 523.231,
new text end to constitute a "statutory short form power of attorney," as this phrase is used in this
chapter the wording and content of the form in subdivision 1 must be duplicated exactly
and with no modifications, parts First, Second, and Third must be properly completed,
and the signature of the principal must be acknowledged. Failure to name a successor
attorney-in-fact, to provide an expiration date, or to complete part Fourth does not
invalidate the power as a statutory short form power of attorney. A power of attorney that
does not satisfy the requirements of this subdivision new text begin or section 523.231 new text end , but purports to be
a statutory short form power of attorney, may constitute a common law power of attorney
that incorporates by reference the definitions of powers contained in section 523.24;
however, a party refusing to accept the authority of the common law attorney-in-fact is
not liable under section 523.20.

Sec. 7.

new text begin [523.231] ALTERNATIVE STATUTORY SHORT FORM OF GENERAL
POWER OF ATTORNEY FOR MILITARY MEMBERS IN ACTIVE SERVICE.
new text end

new text begin Subdivision 1. new text end

new text begin Application. new text end

new text begin The statutory form contained in this section may be
used by a resident of this state who is a member of the military in active service, as
defined in section 190.05. This form is an alternative to the statutory short form in section
523.23. Section 523.23, subdivisions 2 and 3a, apply to this section. Notwithstanding
section 523.075 or 523.08, a power of attorney executed under this section is effective
and expires as provided in subdivision 3.
new text end

new text begin Subd. 2. new text end

new text begin Form. new text end

new text begin The following form must be used to create a power of attorney
under this section. When used, it must be construed in accordance with this section and
section 523.24.
new text end

new text begin STATUTORY SHORT FORM POWER OF ATTORNEY FOR MILITARY MEMBER
IN ACTIVE SERVICE OUTSIDE OF MINNESOTA,
new text end

new text begin MINNESOTA STATUTES, SECTION 523.231
new text end

new text begin IMPORTANT NOTICE: The powers granted by this document are broad and sweeping.
They are defined in Minnesota Statutes, section 523.24. If you have any questions about
these powers, obtain competent advice. This power of attorney may be revoked by you
if you wish to do so. This power of attorney is automatically terminated if it is to your
spouse and proceedings are commenced for dissolution, legal separation, or annulment of
your marriage. This power of attorney authorizes, but does not require, the attorney-in-fact
to act for you. This power of attorney is effective only during the time that you are a
member of the military in active service and stationed outside of the state of Minnesota.
new text end

new text begin PRINCIPAL (Name and Address of Person Granting the Power)
new text end

new text begin _ new text end

new text begin _ new text end

new text begin _ new text end

new text begin ATTORNEY(S)-IN-FACT new text end	new text begin SUCCESSOR ATTORNEY(S)-IN-FACT new text end
new text begin (Name and Address) new text end	new text begin (Optional) To act if any named attorney-in-fact dies, resigns, or is otherwise unable to serve. new text end
	new text begin (Name and Address) new text end
new text begin _ new text end	new text begin First Successor _ new text end
new text begin _ new text end	new text begin _ new text end
new text begin _ new text end	new text begin _ new text end
new text begin _ new text end	new text begin Second Successor _ new text end
new text begin _ new text end	new text begin _ new text end
new text begin _ new text end	new text begin _ new text end

new text begin NOTICE: If more than one attorney-in-fact is designated, make a check or "x" on the line
in front of one of the following statements:
new text end

new text begin _______ new text end	new text begin Each attorney-in-fact may independently exercise the powers granted. new text end
new text begin _______ new text end	new text begin All attorneys-in-fact must jointly exercise the powers granted. new text end

new text begin I, (the above-named principal) hereby appoint the above named attorney(s)-in-fact to act
as my attorney(s)-in-fact:
new text end

new text begin FIRST: To act for me in any way that I could act with respect to the following
matters, as each of them is defined in Minnesota Statutes, section 523.24:
new text end

new text begin (To grant to the attorney-in-fact any of the following powers, make a check or "x" on
the line in front of each power being granted. You may, but need not, cross out each power
not granted. Failure to make a check or "x" on the line in front of the power will have the
effect of deleting the power unless the line in front of the power of (N) is checked or x-ed.)
new text end

new text begin _ new text end	new text begin (A) new text end	new text begin tangible personal property transactions; new text end
new text begin _ new text end	new text begin (B) new text end	new text begin banking transactions; new text end
new text begin _ new text end	new text begin (C) new text end	new text begin business operating transactions; new text end
_	new text begin (D) new text end	new text begin claims and litigation; new text end
_	new text begin (E) new text end	new text begin service contracts; new text end
new text begin _ new text end	new text begin (F) new text end	new text begin insurance transactions (except life insurance); new text end
new text begin _ new text end	new text begin (G) new text end	new text begin all of the powers listed in (A) through (F) above. new text end

new text begin SECOND: This power of attorney shall not be effective if I become incapacitated
or incompetent.
new text end

new text begin THIRD: This power of attorney does not authorize the attorney-in-fact to transfer
my property to the attorney-in-fact.
new text end

new text begin FOURTH: (You must indicate below whether or not the attorney-in-fact is required
to make an accounting. Make a check or "x" on the line in front of the statement that
expresses your intent. If you do not indicate your intent, a quarterly accounting to you
will be required.)
new text end

new text begin _____ new text end	new text begin My attorney-in-fact must render _ new text end
	new text begin (Monthly, Quarterly, Annual) new text end
	new text begin accountings to me or _ new text end
	new text begin (Name and Address) new text end
	new text begin during my lifetime, and a final accounting to the personal representative of my estate, if any is appointed, after my death. new text end
new text begin _____ new text end	new text begin My attorney-in-fact need not render an accounting unless I request it or the accounting is otherwise required by Minnesota Statutes, section 523.21. new text end

new text begin ACKNOWLEDGMENT OF PRINCIPAL
new text end

new text begin In Witness Whereof I have hereunto signed my name this new text end new text begin _________ day of
_______, _______
new text end

		new text begin _ new text end
		new text begin (Signature of Principal) new text end
new text begin (Acknowledgment of Principal) new text end
new text begin STATE OF MINNESOTA new text end	new text begin ) new text end
	new text begin ) ss. new text end
new text begin COUNTY OF new text end	new text begin ) new text end

new text begin The foregoing instrument was acknowledged before me this _______ day of
_______, _______, new text end new text begin by
new text end

new text begin _ new text end
new text begin (Insert Name of Principal) new text end
		new text begin _ new text end
		new text begin (Signature of Notary Public or other Official) new text end

new text begin ACKNOWLEDGMENT OF ATTORNEY(S)-IN-FACT
new text end

new text begin I, _______ (insert name(s) of attorney(s)-in-fact), acknowledge that by exercising a
power granted by this document, I assume certain duties under law
new text end

new text begin and
new text end

new text begin may be civilly or criminally liable for an action made in bad faith or in a fraudulent or
negligent manner, as provided in Minnesota Statutes, section 523.21 or 523.22,
new text end

new text begin or
new text end

new text begin other applicable law.
new text end

new text begin In Witness Whereof I have hereunto signed my name this _______ day of _______,
_______
new text end

		new text begin _ new text end
		new text begin _ new text end
		new text begin (Signature of Attorney(s)-in-fact) new text end
new text begin (Acknowledgment of Attorney(s)-in-fact) new text end
new text begin STATE OF MINNESOTA new text end	new text begin ) new text end
	new text begin ) ss. new text end
new text begin COUNTY OF new text end	new text begin ) new text end

new text begin The foregoing instrument was acknowledged before me this _________ day of
_________, _________, by
new text end

new text begin _ new text end
new text begin (Insert Name(s) of Attorney(s)-in-fact) new text end
		new text begin _ new text end
		new text begin (Signature of Notary Public or other Official) new text end

new text begin Subd. 3. new text end

new text begin Effective period and expiration. new text end

new text begin A power of attorney executed under this
section is effective only when the principal is a member of the military in active service
and stationed outside of the state of Minnesota. This power of attorney expires when the
principal is no longer in active military service outside of the state of Minnesota.
new text end