Minnesota Legislature
Office of the Revisor of Statutes
Minnesota Session Laws - 1992, Regular Session
Key: (1) language to be deleted (2) new language
Laws of Minnesota 1992
CHAPTER 548-H.F.No. 2000
An act relating to probate; changing provisions
relating to merger of trusts, certificates of trust,
affidavits of trustees, and powers of attorney;
amending Minnesota Statutes 1990, sections 508.62;
508A.62; 523.02; 523.03; 523.07; 523.08; 523.09;
523.11, subdivisions 1 and 2; 523.17; 523.18; 523.19;
523.21; 523.22; 523.23, subdivisions 1, 2, 3, and by
adding subdivisions; 523.24, subdivisions 1, 7, 8, and
9; Minnesota Statutes 1991 Supplement, section 518.58,
subdivision 1a; proposing coding for new law in
Minnesota Statutes, chapters 501B; and 523; repealing
Minnesota Statutes 1990, section 523.25.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:
Section 1. [501B.13] [NONMERGER OF TRUSTS.]
Subdivision 1. [SAME TRUSTEE AND BENEFICIARY.] No trust is
invalid or terminated, and title to trust assets is not merged,
because the trustee or trustees are the same person or persons
as the beneficiaries of the trust.
Subd. 2. [APPLICABILITY.] Subdivision 1 applies to all
trusts whenever executed or created.
Sec. 2. [501B.56] [CERTIFICATE OF TRUST.]
Subdivision 1. [CONTENTS OF CERTIFICATE.] The grantor or a
trustee of a trust, at any time after execution or creation of a
trust, may execute a certificate of trust that sets forth less
than all of the provisions of a trust instrument and any
amendments to the instrument. The certificate of trust may be
used for purposes of selling, conveying, pledging, mortgaging,
leasing, or transferring title to any interest in real or
personal property. The certificate of trust must include:
(1) the name of the trust, if one is given;
(2) the date of the trust instrument;
(3) the name of each grantor;
(4) the name of each original trustee;
(5) the name and address of each trustee empowered to act
under the trust instrument at the time of execution of the
certificate;
(6) the following statement: "The trustees are authorized
by the instrument to sell, convey, pledge, mortgage, lease, or
transfer title to any interest in real or personal property,
except as limited by the following: (if none, so indicate)";
(7) any other trust provisions the grantors or trustees
include; and
(8) a statement as to whether the trust instrument has
terminated or been revoked.
The certificate of trust must be upon the representation of
the grantors or trustees that the statements contained in the
certificate of trust are true and correct and that there are no
other provisions in the trust instrument or amendments to it
that limit the powers of the trustees to sell, convey, pledge,
mortgage, lease, or transfer title to interests in real or
personal property. The signature of the grantors or trustees
must be under oath before a notary public or other official
authorized to administer oaths.
Subd. 2. [EFFECT.] A certificate of trust executed under
subdivision 1 may be recorded in the office of the county
recorder for any county or filed with the office of the
registrar of titles with respect to registered land described in
the certificate of trust or any attachment to it. When it is
recorded or filed in a county where real property is situated,
or in the case of personal property, when it is presented to a
third party, the certificate of trust serves to document the
existence of the trust, the identity of the trustees, the powers
of the trustees and any limitations on those powers, and other
matters the certificate of trust sets out, as though the full
trust instrument had been recorded, filed, or presented. Until
amended or revoked under subdivision 3, or until the full trust
instrument is recorded, filed, or presented, a certificate of
trust is prima facie proof as to the matters contained in it and
any party may rely upon the continued effectiveness of the
certificate.
Subd. 3. [AMENDMENT OR REVOCATION.] Amendment or
revocation of a certificate of trust may be made only by a
written instrument executed by the grantor or a trustee of a
trust. Amendment or revocation of a certificate of trust is not
effective as to a party unless that party has actual notice of
the amendment or revocation.
For purposes of this subdivision, "actual notice" means
that a written instrument of amendment or revocation has been
received by the party or, in the case of real property, that
either a written instrument of amendment or revocation has been
received by the party or that a written instrument of amendment
or revocation containing the legal description of the real
property has been recorded in the office of the county recorder
or filed in the office of the registrar of titles where the real
property is situated.
Subd. 4. [APPLICATION.] Subdivisions 1 to 3 are effective
August 1, 1992, but apply to trust instruments whenever created
or executed.
Sec. 3. [501B.57] [AFFIDAVIT OF TRUSTEE IN REAL PROPERTY
TRANSACTIONS.]
Subdivision 1. [FORM OF AFFIDAVIT.] An affidavit of a
trustee or of trustees in support of a real property transaction
may be substantially in the following form:
STATE OF MINNESOTA ) AFFIDAVIT OF TRUSTEE
)ss.
COUNTY OF )
.........................., being first duly sworn on oath
says that:
1. Affiant is the trustee (one of the trustees) named in
that certain Certificate of Trust (or Trust Instrument) dated
......., 19.., and filed for record ......., 19.., as Document
No. ..... (or in Book ..... of ............, Page ......) in the
Office of the County Recorder (Registrar of Titles) of
........... County, Minnesota, executed by Affiant or another
trustee or the grantor of the Trust described in the Certificate
of Trust (or set forth in the Trust Instrument), and which
relates to real property in .......... County, Minnesota legally
described as follows:
............................................................
...............................................................
...............................................................
...............................................................
(If more space is needed, continue on back or on
attachment.)
2. The name(s) and address(es) of the trustee(s) empowered
by the Trust Instrument to act at the time of the execution of
this Affidavit are as follows:
.........................................................
..............................................................
..............................................................
3. The trustee(s) who have executed that certain
instrument relating to the real property described above between
........................, as trustee(s) and
..........................., dated .........., 19..:
(a) are empowered by the provisions of the trust to sell,
convey, pledge, mortgage, lease, or transfer title to any
interest in real property held in trust; and
(b) are the requisite number of trustees required by the
provisions of the trust to execute and deliver such an
instrument.
4. The Trust has not terminated and has not been revoked.
- OR -
4. The Trust has terminated (or has been revoked). The
execution and delivery of the instrument described in paragraph
3 has been made pursuant to the provisions of the Trust.
5. There has been no amendment to the Trust which limits
the power of trustee(s) to execute and deliver the instrument
described in paragraph 3.
6. The Trust is not supervised by any court.
- OR -
6. The Trust is supervised by the ............ Court of
.............. County, ................ All necessary approval
has been obtained from the court for the trustee(s) to execute
and deliver the instrument described in paragraph 3.
7. Affiant does not have actual knowledge of any facts
indicating that the Trust is invalid.
.............................
, Affiant
Subscribed and sworn to before me
this .... day of ........., 19...
.............................
Notary Stamp or Seal Signature of Notary Public or
Other Official
This instrument was drafted by:
...............................
...............................
...............................
Subd. 2. [EFFECT.] An affidavit by the trustee or trustees
under subdivision 1 is proof that:
(i) the trust described in the affidavit is a valid trust;
(ii) either the trust has not terminated or been revoked
or, if the trust has terminated or been revoked, the conveyance
described in the affidavit is made pursuant to the provisions of
the trust;
(iii) the powers granted the trustee or trustees extend to
the real property described in the affidavit or attachment to
the affidavit;
(iv) no amendment to the trust has been made limiting the
power of the trustee or trustees to sell, convey, pledge,
mortgage, lease, or transfer title to the real property
described in the affidavit or attachment to the affidavit, if
any;
(v) the requisite number of trustees have executed and
delivered the instrument of conveyance described in the
affidavit; and
(vi) any necessary court approval of the transaction has
been obtained.
The proof is conclusive as to any party relying on the
affidavit, except a party dealing directly with the trustee or
trustees who has actual knowledge of facts to the contrary.
Sec. 4. Minnesota Statutes 1990, section 508.62, is
amended to read:
508.62 [TRUSTEE'S CONVEYANCE.]
No instrument executed by an owner whose fee title to
registered land is held in trust which transfers or plats the
land, shall be registered except upon the written certification
of the examiner of titles that the instrument is executed in
accordance with a power conferred in the instrument of trust, or
evidenced in a certificate of trust authorized by section 2, or
is authorized by law, or upon the order of the district court
directing its registration. The examiner shall not certify any
such instrument unless:
(1) the trust is administered supervised by the court; or
unless
(2) an affidavit of trustee authorized by section 3 and the
document creating the trust, or a certified copy of it, or a
certificate of trust authorized by section 2 is registered as a
memorial upon the certificate of title. The certified copy of
the certificate setting forth the adoption of the resolution for
voluntary dissolution of a corporate registered owner together
with the certificate of the secretary of state that said
certificate of dissolution has been filed for record in the
secretary's office shall be deemed the document creating the
trust.
Sec. 5. Minnesota Statutes 1990, section 508A.62, is
amended to read:
508A.62 [TRUSTEE'S CONVEYANCE.]
No instrument executed by an owner, whose fee title to land
is registered under sections 508A.01 to 508A.85 and is held in
trust, which transfers or plats the land, shall be registered
except upon the written certification of the examiner of titles
that the instrument is executed in accordance with a power
conferred in the instrument of trust, or evidenced in a
certificate of trust authorized by section 2, or is authorized
by law, or upon the order of the district court directing the
registration of it. The examiner shall not certify any
instrument unless:
(1) the trust is administered supervised by the court; or
unless
(2) an affidavit of trustee authorized by section 3 and the
document creating the trust, or a certified copy thereof of
it, or a certificate of trust authorized by section 2 is
registered as a memorial upon the CPT. The certified copy of
the certificate setting forth the adoption of the resolution for
voluntary dissolution of a corporate registered owner together
with the certificate of the secretary of state that the
certificate of dissolution has been filed for record in the
secretary's office shall be deemed the document creating the
trust.
Sec. 6. Minnesota Statutes 1991 Supplement, section
518.58, subdivision 1a, is amended to read:
Subd. 1a. [TRANSFER, ENCUMBRANCE, CONCEALMENT, OR
DISPOSITION OF MARITAL ASSETS.] During the pendency of a
marriage dissolution, separation, or annulment proceeding, or in
contemplation of commencing a marriage dissolution, separation,
or annulment proceeding, each party owes a fiduciary duty to the
other for any profit or loss derived by the party, without the
consent of the other, from a transaction or from any use by the
party of the marital assets. If the court finds that a party to
a marriage, without consent of the other party, has in
contemplation of commencing, or during the pendency of, the
current dissolution, separation, or annulment proceeding,
transferred, encumbered, concealed, or disposed of marital
assets except in the usual course of business or for the
necessities of life, the court shall compensate the other party
by placing both parties in the same position that they would
have been in had the transfer, encumbrance, concealment, or
disposal not occurred. The burden of proof under this
subdivision is on the party claiming that the other party
transferred, encumbered, concealed, or disposed of marital
assets in contemplation of commencing or during the pendency of
the current dissolution, separation, or annulment proceeding,
without consent of the claiming party, and that the transfer,
encumbrance, concealment, or disposal was not in the usual
course of business or for the necessities of life. In
compensating a party under this section, the court, in dividing
the marital property, may impute the entire value of an asset
and a fair return on the asset to the party who transferred,
encumbered, concealed, or disposed of it. Use of a power of
attorney, or the absence of a restraining order against the
transfer, encumbrance, concealment, or disposal of marital
property is not available as a defense under this subdivision.
Sec. 7. Minnesota Statutes 1990, 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 523.25 523.24,
and is subject to the provisions of sections 523.01 to 523.25
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 523.25 523.24 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 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. 8. Minnesota Statutes 1990, section 523.03, is
amended to read:
523.03 [INTERPRETATION.]
Unless the context requires otherwise, all references in
sections 523.01 to 523.25 to the "principal" include any
guardian or conservator of the estate appointed for the
principal at any time and all references to a "power of
attorney" mean a validly executed power of attorney. As used in
this chapter:
(1) "incapacity" means cause for appointment of a guardian
or conservator of the person or estate of an adult under section
525.54;
(2) "incompetence" has the meaning given in section 525.54;
(3) "principal" includes a guardian or conservator of the
estate appointed for the principal at any time; and
(4) "power of attorney" means a validly executed power of
attorney.
Sec. 9. Minnesota Statutes 1990, section 523.07, is
amended to read:
523.07 [DURABLE POWER OF ATTORNEY.]
A power of attorney is durable if it contains language such
as "This power of attorney shall not be affected by disability
incapacity or incompetence of the principal" or "This power of
attorney shall become effective upon the disability incapacity
or incompetence of the principal," or similar words showing the
intent of the principal that the authority conferred is
exercisable notwithstanding the principal's later disability or
incapacity or incompetence.
Sec. 10. [523.075] [EXPIRATION DATE IN A POWER OF
ATTORNEY.]
In a power of attorney, an expiration date, if any, must be
stated in terms of a specific month, day, and year. An
expiration date stated in any other way has no effect.
Sec. 11. Minnesota Statutes 1990, section 523.08, is
amended to read:
523.08 [TERMINATION OF A DURABLE POWER.]
A durable power of attorney terminates on the earliest to
occur of the death of the principal or upon, the expiration of a
period of time date of termination specified in the power of
attorney if the period ends prior to the death of the principal,
or, in the case of a power of attorney to the spouse of the
principal, upon the commencement of proceedings for dissolution,
separation, or annulment of the principal's marriage.
Sec. 12. Minnesota Statutes 1990, section 523.09, is
amended to read:
523.09 [TERMINATION OF A NONDURABLE POWER OF ATTORNEY.]
A nondurable power of attorney terminates on the death of
the principal, on the incompetency incapacity or incompetence of
the principal, or upon the expiration of a period of time date
of termination specified in the power of attorney if the period
ends prior to the death or incompetency of the principal, or, in
the case of a power of attorney to the spouse of the principal,
upon the commencement of proceedings for dissolution,
separation, or annulment of the principal's marriage.
Sec. 13. Minnesota Statutes 1990, section 523.11,
subdivision 1, is amended to read:
Subdivision 1. [MANNER.] An executed power of attorney may
be revoked only by a written instrument of revocation signed by
the principal and, in the case of a signature on behalf of the
principal by another or a signature by a mark, acknowledged by
before a notary public. The conservator or guardian of the
principal has the same power the principal would have if the
principal were not disabled incapacitated or incompetent to
revoke, suspend, or terminate all or any part of the power of
attorney.
Sec. 14. Minnesota Statutes 1990, section 523.11,
subdivision 2, is amended to read:
Subd. 2. [EFFECT; DEFINITION OF ACTUAL NOTICE OF
REVOCATION.] Revocation of an executed power of attorney is not
effective as to any party unless that party has actual notice of
the revocation.
As used in this chapter, "actual notice of revocation"
means that a written instrument of revocation has been received
by the party or,. In a real property transaction,
transactions only, "actual notice of revocation" means that a
written instrument of revocation has been received by the party,
or that a written instrument of revocation containing the legal
description of the real property has been recorded in the office
of the county recorder or filed in the office of the registrar
of titles. Recorded or filed revocation is actual notice of
revocation of a power of attorney only as to any interest in
real property described in the revocation and located in the
county where it is recorded.
Sec. 15. [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 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. 16. Minnesota Statutes 1990, section 523.17, is
amended to read:
523.17 [AFFIDAVIT OF ATTORNEY-IN-FACT AS CONCLUSIVE PROOF
OF NONTERMINATION AND NONREVOCATION IN REAL PROPERTY
TRANSACTIONS.]
If the exercise of a power granted by a power of attorney
relating to real property requires execution or delivery of any
instrument which is recordable, an affidavit, signed by the
attorney-in-fact, stating that the attorney-in-fact did not
have, at the time of exercising a power pursuant to the power of
attorney, actual knowledge of the termination of the power of
attorney by the death of the principal, or, if the power of
attorney is one which terminates upon the incompetence of the
principal, actual knowledge of the principal's incompetence, or
actual notice of the revocation of the power of attorney, is
conclusive proof that the power of attorney had not terminated
or been revoked at the time of the exercise of the power as to
any party relying on the affidavit except any party dealing
directly with the attorney-in-fact who has actual knowledge that
the power of attorney had terminated prior to the exercise of
the power or actual notice of the revocation of the power of
attorney. Subdivision 1. [FORM OF AFFIDAVIT.] An affidavit of
nontermination or nonrevocation in support of a real property
transaction may be substantially in the following form:
AFFIDAVIT BY ATTORNEY IN FACT
STATE OF MINNESOTA )
)ss.
COUNTY OF )
............................., being first duly sworn on
oath says that:
1. Affiant is the Attorney-in-Fact (or agent) named in
that certain Power of Attorney dated ..........., 19.., and
filed for record ..........., 19.., as Document No........ (or
in Book .......... of ....... Page.......), in the Office of the
(County Recorder) (Registrar of Titles) of................
County, Minnesota, executed by
..........................................as Grantor and
Principal, relating to real property in ....................
County, Minnesota, legally described as follows:
........................................................
........................................................
........................................................
(If more space is needed, continue on back or on an
attachment.)
2. Affiant does not have actual knowledge and has not
received actual notice of the revocation or termination of the
Power of Attorney by Grantor's death, incapacity, incompetence,
or otherwise, or notice of any facts indicating the same.
3. Affiant has examined the legal description(s) if any,
attached to said Power of Attorney, and certifies that the
description(s) has (have) not been changed, replaced, or amended
subsequent to the signing of said Power of Attorney by the
Principal.
.............................
, Affiant
Subscribed and sworn to before me
this .... day of ........., 19...
.............................
Notary Stamp or Seal Signature of Notary Public or
Other Official
This instrument was drafted by:
...............................
...............................
...............................
Subd. 2. [EFFECT.] An affidavit by the attorney-in-fact
under subdivision 1 is conclusive proof that the power of
attorney has not terminated or been revoked, and that the powers
granted extended to the property described in the power of
attorney or any attachment to it, as of the time of the exercise
of the power, as to any party relying on the affidavit except
any party dealing directly with the attorney-in-fact who has
actual knowledge that the power of attorney had terminated prior
to the exercise of the power or actual notice of the revocation
of the power of attorney or actual knowledge that the powers do
not extend to the real property legally described in the power
of attorney, including any attachment.
Sec. 17. Minnesota Statutes 1990, section 523.18, is
amended to read:
523.18 [SIGNATURE OF ATTORNEY-IN-FACT AS CONCLUSIVE PROOF
OF NONTERMINATION.]
In the exercise of a power granted by a power of attorney,
other than in a transaction relating to real property described
in section 523.17, a signature by a person as "attorney-in-fact
for (Name of the principal)" or "(Name of the principal) by
(Name of the attorney-in-fact) the principal's
attorney-in-fact" or any similar written disclosure of the
principal and attorney-in-fact relationship constitutes an
attestation by the attorney-in-fact that the attorney-in-fact
did not have, at the time of signing, actual knowledge of the
termination of the power of attorney by the death of the
principal or, in the case of a power of attorney to the spouse
of the principal, by the commencement of proceedings for
dissolution, separation, or annulment of the principal's
marriage, or, if the power is one which terminates upon
incapacity or incompetence of the principal, actual knowledge of
the principal's incapacity or incompetence, or actual notice of
the revocation of the power of attorney, and is conclusive proof
as to any party relying on the attestation that the power of
attorney had not terminated or been revoked at the time of the
signature by the attorney-in-fact on behalf of the principal
except as to any party who has actual knowledge that the power
of attorney had terminated prior to the signature or actual
notice of the revocation of the power of attorney.
Sec. 18. Minnesota Statutes 1990, section 523.19, is
amended to read:
523.19 [THIRD PARTIES HELD HARMLESS.]
Any party accepting the authority of an attorney-in-fact to
exercise a power granted by a power of attorney is not liable to
the principal, to the heirs and assigns of the principal, or to
any representative of the estate of the principal if: (1) the
applicable provisions of sections 523.17 and 523.18 have been
satisfied; (2) the provisions of section 523.16 have been
satisfied, if applicable; (3) the party has no actual notice of
the revocation of the power of attorney prior to the
transaction; (4) the party has no actual knowledge of the death
of the principal and, if the power of attorney is not a durable
power of attorney, has not received actual notice of a judicial
determination that the principal is legally incapacitated or
incompetent; and (5) the duration of the power of attorney
specified in the power of attorney itself, if any, has not
expired. A good faith purchaser from any party who has obtained
an interest in property from an attorney-in-fact is not liable
to the principal, the heirs or assigns of the principal, or the
representative of the estate of the principal.
Sec. 19. Minnesota Statutes 1990, section 523.21, is
amended to read:
523.21 [DUTIES OF AN ATTORNEY-IN-FACT.]
The attorney-in-fact shall keep complete records of all
transactions entered into by the attorney-in-fact on behalf of
the principal. 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; or (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. 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. 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. 20. Minnesota Statutes 1990, section 523.22, is
amended to read:
523.22 [LIABILITY OF ATTORNEY-IN-FACT FOR IMPROPER
EXECUTION OF AFFIDAVITS AND SIGNATURE.]
Nothing in sections 523.01 to 523.25 523.24 limits any
rights the principal may have against the attorney-in-fact for
any fraudulent or negligent actions in executing affidavits or
signing or acting on behalf of the principal as an
attorney-in-fact. An attorney-in-fact who knowingly executes a
false affidavit or, knowing that the conditions of section
523.18 are not satisfied, signs on behalf of the principal is
liable for treble the amount of damages suffered by the
principal.
Sec. 21. Minnesota Statutes 1990, section 523.23,
subdivision 1, is amended to read:
Subdivision 1. [FORM.] The use of the following form in
the creation of may be used to create a power of attorney is
lawful, and, when used, it shall must be construed in accordance
with the provisions of sections 523.23 and 523.24:
NOTICE: THE POWERS GRANTED BY THIS DOCUMENT ARE BROAD AND
SWEEPING. THEY ARE DEFINED IN SECTION 523.24. IF YOU HAVE ANY
QUESTIONS ABOUT THESE POWERS, OBTAIN COMPETENT ADVICE. THE USE
OF ANY OTHER OR DIFFERENT FORM OF POWER OF ATTORNEY DESIRED BY
THE PARTIES IS ALSO PERMITTED. THIS POWER OF ATTORNEY MAY BE
REVOKED BY YOU IF YOU LATER WISH TO DO SO. THIS POWER OF
ATTORNEY AUTHORIZES BUT DOES NOT REQUIRE THE ATTORNEY-IN-FACT TO
ACT FOR YOU.
Know All by These Presents, which are intended to
constitute a STATUTORY SHORT FORM POWER OF ATTORNEY pursuant to
Minnesota Statutes, section 523.23:
That I .................... (insert name and address of the
principal) do hereby appoint .................... (insert name
and address of the attorney-in-fact, or each attorney-in-fact,
if more than one is designated) my attorney(s)-in-fact to act
(jointly):
(NOTE: If more than one attorney-in-fact is designated and
the principal wishes each attorney-in-fact alone to be able to
exercise the power conferred, delete the word "jointly."
Failure to delete the word "jointly" will require the
attorneys-in-fact to act unanimously.)
First: in my name, place and stead in any way which I
myself could do, if I were personally present, with respect to
the following matters as each of them is defined in section
523.24:
(To grant to the attorney-in-fact any of the following
powers, make a check or "x" in the line in front of each power
being granted. To delete any of the following powers, do not
make a check or "x" in the line in front of the power. You may,
but need not, cross out each power being deleted with a line
drawn through it (or in similar fashion). Failure to make a
check or "x" in the line in front of the power will have the
effect of deleting the power unless the line in front of the
power of (o) is checked or x-ed.)
Check or "x"
....... (A) real property transactions;
....... (B) tangible personal property transactions;
....... (C) bond, share, and commodity transactions;
....... (D) banking transactions;
....... (E) business operating transactions;
....... (F) insurance transactions;
....... (G) beneficiary transactions;
....... (H) gift transactions;
....... (I) fiduciary transactions;
....... (J) claims and litigation;
....... (K) family maintenance;
....... (L) benefits from military service;
....... (M) records, reports, and statements;
....... (N) all other matters;
....... (O) all of the powers listed in
(A) through (N) above.
Second: (You must indicate below whether or not this power
of attorney will be effective if you become incompetent. Make a
check or "x" in the line in front of the statement that
expresses your intent.)
..... This power of attorney shall continue
to be effective if I become incompetent.
It shall not be affected by my later
disability or incompetency.
..... This power of attorney shall not be
effective if I become incompetent.
Third: (You must indicate below whether or not this power
of attorney authorizes the attorney-in-fact to transfer your
property directly to the attorney-in-fact. Make a check or "x"
in the line in front of the statement that expresses your
intent.)
..... This power of attorney authorizes the
attorney-in-fact to receive the transfer
directly.
..... This power of attorney does not authorize
the attorney-in-fact to receive the transfer
directly.
In Witness Whereof I have hereunto signed my name this
......... day of ..................., 19...
......................
(Signature of Principal)
(Acknowledgment)
Specimen Signature of Attorney(s)-in-Fact
.........................
.........................
STATUTORY SHORT FORM POWER OF ATTORNEY
MINNESOTA STATUTES, SECTION 523.23
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.
PRINCIPAL (Name and Address of Person Granting the Power)
.....................................
.....................................
.....................................
ATTORNEYS(S)-IN-FACT SUCCESSOR ATTORNEY(S)-IN-FACT
(Name and Address) (Optional) To act if any named
attorney-in-fact dies, resigns,
or is otherwise unable to serve.
(Name and Address)
......................... First Successor...............
......................... ..............................
......................... ..............................
......................... Second Successor..............
......................... ..............................
......................... ..............................
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:
... Each attorney-in-fact EXPIRATION DATE (Optional)
may independently exercise ................... ..., .........
the powers granted. Use Specific Month Day Year Only
... All attorneys-in-fact
must jointly exercise the
powers granted.
I, (the above-named Principal) hereby appoint the above named
Attorney(s)-in-Fact to act as my attorney(s)-in-fact:
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:
(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.)
Check or "x"
..... (A) real property transactions;
I choose to limit this power to real property in
............ County, Minnesota, described as follows:
(Use legal description. Do not use street address.)
(NOTE: A person may not grant powers relating to real
property transactions in Minnesota to his
or her spouse.)
......................................................
......................................................
......................................................
......................................................
(If more space is needed, continue on the back or on an
attachment.)
..... (B) tangible personal property transactions;
..... (C) bond, share, and commodity transactions;
..... (D) banking transactions;
..... (E) business operating transactions;
..... (F) insurance transactions;
..... (G) beneficiary transactions;
..... (H) gift transactions;
..... (I) fiduciary transactions;
..... (J) claims and litigation;
..... (K) family maintenance;
..... (L) benefits from military service;
..... (M) records, reports, and statements;
..... (N) all of the powers listed in (A) through (M) above
and all other matters.
SECOND: (You must indicate below whether or not this power
of attorney will be effective if you become incapacitated or
incompetent. Make a check or "x" on the line in front of the
statement that expresses your intent.)
... This power of attorney shall continue to be effective
if I become incapacitated or incompetent.
... This power of attorney shall not be effective if I
become incapacitated or incompetent.
THIRD: (You must indicate below whether or not this power
of attorney authorizes the attorney-in-fact to transfer your
property to the attorney-in-fact. Make a check or "x" on the
line in front of the statement that expresses your intent.)
... This power of attorney authorizes the attorney-in-fact to
transfer my property to the attorney-in-fact.
... This power of attorney does not authorize the
attorney-in-fact to transfer my property to the
attorney-in-fact.
FOURTH: (You may 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.)
... 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.
... My attorney-in-fact must render ............................
(Monthly, Quarterly, Annual)
accountings to me or .......................................
(Name and Address)
during my lifetime, and a final accounting to the personal
representative of my estate, if any is appointed, after my
death.
In Witness Whereof I have hereunto signed my name this .... day
of .........., 19....
..............................
(Signature of Principal)
(Acknowledgment of Principal)
STATE OF MINNESOTA )
)ss.
COUNTY OF )
The foregoing instrument was acknowledged before me this
.... day of .........., 19..., by ..........................
(Insert Name of Principal)
..............................
(Signature of Notary Public
or other Official)
This instrument was Specimen Signature of
drafted by: Attorney(s)-in-Fact
(Notarization not required)
............................. ..............................
............................. ..............................
............................. ..............................
..............................
Sec. 22. Minnesota Statutes 1990, section 523.23,
subdivision 2, is amended to read:
Subd. 2. [FAILURE TO CHECK OR "X" A POWER.] Any of the
powers of the form in subdivision 1 which is not checked or X-ed
is withheld by the principal from the attorney-in-fact unless
the power of (O) (N) of the form in subdivision 1 is checked or
X-ed. The withholding by the principal from the
attorney-in-fact of any of the powers of (A) to (M), in addition
to the withholding of the power of (O), of the form in
subdivision 1 automatically constitutes withholding of the
powers of (N).
Sec. 23. Minnesota Statutes 1990, section 523.23,
subdivision 3, is amended to read:
Subd. 3. [REQUIREMENTS.] 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, the NOTICES must appear in a conspicuous
place and manner 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, 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. 24. Minnesota Statutes 1990, section 523.23, is
amended by adding a subdivision to read:
Subd. 3a. [LEGAL DESCRIPTION.] Use of a street address
instead of a legal description under the power of (A) in part
First of the statutory short form power of attorney invalidates
the power of (A) for all real property transactions, but does
not affect the powers of (B) to (M), nor does it affect the
power of (N) except with respect to real property transactions.
Sec. 25. Minnesota Statutes 1990, section 523.23, is
amended by adding a subdivision to read:
Subd. 5. [REIMBURSEMENT OF ATTORNEY-IN-FACT.] The
attorney-in-fact acting under a statutory short form power of
attorney is authorized to reimburse the attorney-in-fact for
expenditures the attorney-in-fact has made on behalf of the
principal even if the principal has not authorized the
attorney-in-fact to receive transfers directly under part
Third. In the event a reimbursement is made, the
attorney-in-fact shall render an accounting in accordance with
section 523.21.
Sec. 26. Minnesota Statutes 1990, section 523.24,
subdivision 1, is amended to read:
Subdivision 1. [REAL PROPERTY TRANSACTIONS.] In a
statutory short form power of attorney, the language conferring
general authority with respect to real estate transactions,
means that the principal authorizes the attorney-in-fact:
(1) to accept as a gift, or as security for a loan, to
reject, to demand, to buy, to lease, to receive, or otherwise to
acquire either ownership or possession of any estate or interest
in real property;
(2) to sell, exchange, convey either with or without
covenants, quitclaim, release, surrender, mortgage, encumber,
partition or consent the partitioning, plat or consent platting,
grant options concerning, lease or sublet, or otherwise to
dispose of, any estate or interest in real property;
(3) to release in whole or in part, assign the whole or a
part of, satisfy in whole or in part, and enforce by action,
proceeding or otherwise, any mortgage, encumbrance, lien, or
other claim to real property which exists, or is claimed to
exist, in favor of the principal;
(4) to do any act of management or of conservation with
respect to any estate or interest in real property owned, or
claimed to be owned, by the principal, including by way of
illustration, but not of restriction, power to insure against
any casualty, liability, or loss, to obtain or regain possession
or protect such estate or interest by action, proceeding or
otherwise, to pay, compromise or contest taxes or assessments,
to apply for and receive refunds in connection therewith, to
purchase supplies, hire assistance or labor, and make repairs or
alterations in the structures or lands;
(5) to use in any way, develop, modify, alter, replace,
remove, erect, or install structures or other improvements upon
any real property in which the principal has, or claims to have,
any estate or interest;
(6) to demand, receive, obtain by action, proceeding, or
otherwise, any money, or other thing of value to which the
principal is, or may become, or may claim to be entitled as the
proceeds of an interest in real property or of one or more of
the transactions enumerated in this subdivision, to conserve,
invest, disburse, or utilize anything so received for purposes
enumerated in this subdivision, and to reimburse the
attorney-in-fact for any expenditures properly made by the
attorney-in-fact in the execution of the powers conferred on the
attorney-in-fact by the statutory short form power of attorney;
(7) to participate in any reorganization with respect to
real property and receive and hold any shares of stock or
instrument of similar character received in accordance with a
plan of reorganization, and to act with respect to the shares,
including, by way of illustration but not of restriction, power
to sell or otherwise to dispose of the shares, or any of them,
to exercise or sell any option, conversion or similar right with
respect to the shares, and to vote on the shares in person or by
the granting of a proxy;
(8) to agree and contract, in any manner, and with any
person and on any terms, which the attorney-in-fact may select,
for the accomplishment of any of the purposes enumerated in this
subdivision, and to perform, rescind, reform, release, or modify
such an agreement or contract or any other similar agreement or
contract made by or on behalf of the principal;
(9) to execute, acknowledge, seal, and deliver any deed,
revocation, mortgage, lease, notice, check, or other instrument
which the attorney-in-fact deems useful for the accomplishment
of any of the purposes enumerated in this subdivision;
(10) to prosecute, defend, submit to arbitration, settle,
and propose or accept a compromise with respect to, any claim
existing in favor of, or against, the principal based on or
involving any real estate transaction or to intervene in any
action or proceeding relating to the claim;
(11) to hire, discharge, and compensate any attorney,
accountant, expert witness, or other assistant or assistants
when the attorney-in-fact deems that action to be desirable for
the proper execution of any of the powers described in this
subdivision, and for the keeping of needed records; and
(12) in general, and in addition to all the specific acts
in this subdivision, to do any other act with respect to any
estate or interest in real property.
All powers described in this subdivision are exercisable
equally with respect to any estate or interest in real property
owned by the principal at the giving of the power of attorney or
acquired after that time, and whether located in the state of
Minnesota or elsewhere except when a legal description of
certain real property is included in the statutory short form
power of attorney, in which case the powers described in this
subdivision are exercisable only with respect to the estate or
interest owned by the principal in the property described in the
form. In the case of real property located in the state of
Minnesota, the powers described in this subdivision are limited
by the provisions of section 519.06.
Sec. 27. Minnesota Statutes 1990, section 523.24,
subdivision 7, is amended to read:
Subd. 7. [BENEFICIARY TRANSACTIONS.] In the statutory
short form power of attorney, the language conferring general
authority with respect to beneficiary transactions, means that
the principal authorizes the attorney-in-fact:
(1) to represent and act for the principal in all ways and
in all matters affecting any trust, probate estate,
guardianship, conservatorship, escrow, custodianship, qualified
benefit plan, nonqualified benefit plan, individual retirement
asset, or other fund out of which the principal is entitled, or
claims to be entitled, as a beneficiary or participant, to some
share or payment, including, but not limited to the following:
(a) to accept, reject, disclaim, receive, receipt for,
sell, assign, release, pledge, exchange, or consent to a
reduction in or modification of any share in or payment from the
fund;
(b) to demand or obtain by action, proceeding, or otherwise
any money or other thing of value to which the principal is, may
become, or may claim to be entitled by reason of the fund, to
initiate, to participate in, and to oppose any proceeding,
judicial, or otherwise, for the ascertainment of the meaning,
validity, or effect of any deed, declaration of trust, or other
transaction affecting in any way the interest of the principal,
to initiate, participate in, and oppose any proceeding, judicial
or otherwise, for the removal, substitution, or surcharge of a
fiduciary, to conserve, invest, disburse, or use anything so
received for purposes listed in this subdivision, and to
reimburse the attorney-in-fact for any expenditures properly
made by the attorney-in-fact in the execution of the powers
conferred on the attorney-in-fact by the statutory short form
power of attorney;
(c) to prepare, sign, file, and deliver all reports,
compilations of information, returns, or papers with respect to
any interest had or claimed by or on behalf of the principal in
the fund, to pay, compromise, or contest, and apply for and
receive refunds in connection with, any tax or assessment, with
respect to any interest had or claimed by or on behalf of the
principal in the fund or with respect to any property in which
an interest is had or claimed;
(d) to agree and contract in any manner, with any person,
and on any terms the attorney-in-fact selects, for the
accomplishment of the purposes listed in this subdivision, and
to perform, rescind, reform, release, or modify the agreement or
contract or any other similar agreement or contract made by or
on behalf of the principal;
(e) to execute, acknowledge, verify, seal, file, and
deliver any deed, assignment, mortgage, lease, consent,
designation, pleading, notice, demand, election, conveyance,
release, assignment, check, pledge, waiver, admission of
service, notice of appearance, or other instrument which the
attorney-in-fact deems useful for the accomplishment of any of
the purposes enumerated in this subdivision;
(f) to submit to arbitration or settle and propose or
accept a compromise with respect to any controversy or claim
which affects the administration of the fund, in any one of
which the principal has, or claims to have, an interest, and to
do any and all acts which the attorney-in-fact deems to be
desirable or necessary in effectuating the compromise;
(g) to hire, discharge, and compensate any attorney,
accountant, expert witness, or other assistant, when the
attorney-in-fact deems that action to be desirable for the
proper execution by the attorney-in-fact of any of the powers
described in this subdivision, and for the keeping of needed
records;
(h) to transfer any part or all of any interest which the
principal may have in any interests in real estate, stocks,
bonds, bank accounts, insurance, and any other assets of any
kind and nature, to the trustee of any revocable trust created
by the principal as grantor.
For the purposes of clauses (a) to (h), "the fund" means
any trust, probate estate, guardianship, conservatorship,
escrow, custodianship, qualified benefit plan, nonqualified
benefit plan, individual retirement asset, or any other fund in
which the principal has or claims to have an interest.
(2) in general, and in addition to all the specific acts
listed in this subdivision, to do any other acts with respect to
the administration of a trust, probate estate, guardianship,
conservatorship, escrow, custodianship, qualified benefit plan,
nonqualified benefit plan, individual retirement asset, or other
fund, in which the principal has, or claims to have, an interest
as a beneficiary or participant.
All powers described in this subdivision are exercisable
equally with respect to the administration or disposition of any
trust, probate estate, guardianship, conservatorship, escrow,
custodianship, qualified benefit plan, nonqualified benefit
plan, individual retirement asset, or other fund in which the
principal is interested at the giving of the power of attorney
or becomes interested after that time, as a beneficiary or
participant, and whether located in the state of Minnesota or
elsewhere.
Sec. 28. Minnesota Statutes 1990, section 523.24,
subdivision 8, is amended to read:
Subd. 8. [GIFT TRANSACTIONS.] In the statutory short form
power of attorney, the language conferring general authority
with respect to gift transactions, means that the principal
authorizes the attorney-in-fact:
(1) to make gifts to organizations, whether charitable or
otherwise, to which the principal has made gifts, and to satisfy
pledges made to organizations by the principal;
(2) to make gifts on behalf of the principal to the
principal's spouse, children, and other descendants or the
spouse of any child or other descendant, and, if authorized by
the principal in part Third, to the attorney-in-fact, either
outright or in trust, for purposes which the attorney-in-fact
deems to be in the best interest of the principal, specifically
including minimization of income, estate, inheritance, or gift
taxes, provided that, notwithstanding that the principal in part
Third may have authorized the attorney-in-fact to transfer the
principal's property to the attorney-in-fact, no
attorney-in-fact nor anyone the attorney-in-fact has a legal
obligation to support may be the recipient of any gifts in any
one calendar year which, in the aggregate, exceed $10,000 in
value to each recipient;
(3) to prepare, execute, consent to on behalf of the
principal, and file any return, report, declaration, or other
document required by the laws of the United States, any state or
subdivision of a state, or any foreign government, which the
attorney-in-fact deems to be desirable or necessary with respect
to any gift made under the authority of this subdivision;
(4) to execute, acknowledge, seal, and deliver any deed,
assignment, agreement, authorization, check, or other instrument
which the attorney-in-fact deems useful for the accomplishment
of any of the purposes enumerated in this subdivision;
(5) to prosecute, defend, submit to arbitration, settle,
and propose or accept a compromise with respect to any claim
existing in favor of or against the principal based on or
involving any gift transaction or to intervene in any related
action or proceeding;
(6) to hire, discharge, and compensate any attorney,
accountant, expert witness, or other assistant when the
attorney-in-fact deems that action to be desirable for the
proper execution by the attorney-in-fact of any of the powers
described in this subdivision, and for the keeping of needed
records; and
(7) in general, and in addition to but not in contravention
of all the specific acts listed in this subdivision, to do any
other acts which the attorney-in-fact deems desirable or
necessary to complete any gift on behalf of the principal.
All powers described in this subdivision are exercisable
equally with respect to a gift of any property in which the
principal is interested at the giving of the power of attorney
or becomes interested after that time, and whether located in
the state of Minnesota or elsewhere.
Sec. 29. Minnesota Statutes 1990, section 523.24,
subdivision 9, is amended to read:
Subd. 9. [FIDUCIARY TRANSACTIONS.] In a statutory short
form power of attorney, the language conferring general
authority with respect to fiduciary transactions, means that the
principal authorizes the agent:
(1) to apply for and procure, in the name of the principal,
letters of administration, letters testamentary, letters of
guardianship or conservatorship, or any other type of authority,
either judicial or administrative, to act as a fiduciary of any
sort;
(2) to represent and act for the principal in all ways and
in all matters affecting any fund with respect to which the
principal is a fiduciary;
(3) (2) to initiate, participate in, and oppose any
proceeding, judicial or otherwise, for the removal,
substitution, or surcharge of a fiduciary, to conserve, to
invest or to disburse anything received for the purposes of the
fund for which it is received, and to reimburse the
attorney-in-fact for any expenditures properly made by the
attorney-in-fact in the execution of the powers conferred on the
attorney-in-fact by the statutory short form power of attorney;
(4) (3) to agree and contract, in any manner, with any
person, and on any terms which the attorney-in-fact selects for
the accomplishment of the purposes enumerated in this
subdivision, and to perform, rescind, reform, release, or modify
the agreement or contract or any other similar agreement or
contract made by or on behalf of the principal;
(5) (4) to execute, acknowledge, verify, seal, file, and
deliver any consent, designation, pleading, notice, demand,
election, conveyance, release, assignment, check, pledge,
waiver, admission of service, notice of appearance, or other
instrument which the attorney-in-fact deems useful for the
accomplishment of any of the purposes enumerated in this
subdivision;
(6) (5) to hire, discharge, and compensate any attorney,
accountant, expert witness, or other assistants, when the
attorney-in-fact deems that action to be desirable for the
proper execution by the attorney-in-fact of any of the powers
described in this subdivision, and for the keeping of needed
records; and
(7) (6) in general, and in addition to all the specific
acts listed in this subdivision, to do any other acts with
respect to a fund of which the principal is a fiduciary.
Nothing in this subdivision authorizes delegation of any
power of a fiduciary unless the power is one the fiduciary is
authorized to delegate under the terms of the instrument
governing the exercise of the power or under local law.
For the purposes of clauses (1) to (7) (6), "fund" means
any trust, probate estate, guardianship, conservatorship,
escrow, custodianship, or any other fund in which the principal
has, or claims to have, an interest as a fiduciary.
All powers described in this subdivision are exercisable
equally with respect to any fund of which the principal is a
fiduciary to the giving of the power of attorney or becomes a
fiduciary after that time, and whether located in the state of
Minnesota or elsewhere.
Sec. 30. [REPEALER.]
Minnesota Statutes 1990, section 523.25, is repealed.
Presented to the governor April 17, 1992
Signed by the governor April 27, 1992, 2:02 p.m.
Official Publication of the State of Minnesota
Revisor of Statutes