In pursuit of standardized laws across the U.S., numerous states have enacted the Uniform Power of Attorney Act (UPOAA) in order to allow Americans to anticipate that their power of attorney agreement will be upheld if they move to another location. Traditionally, powers of attorney are governed by state law and have significant differences from one locale to another.
A power of attorney is a legally binding contractual agreement that assigns decision-making ability to another individual. The principal allows an attorney in fact, also known as an agent, to agree to business deals, buy, sell, or transfer assets, or make medical decisions on the principal’s behalf. Having a valid and enforceable power of attorney is a vital aspect of comprehensive estate planning.
However, if specific provisions of a power of attorney agreement are not valid where you are located, your planning can be upended. Therefore, states that adopt the UPOAA provide their residents the peace of mind of knowing their POA will be upheld in other UPOAA compliant jurisdictions.
Read more: Durable vs General POA
What Is the Uniform Power of Attorney Act?
As travel and commerce between the states have grown easier in the past century, the problem of differing state laws has become more prominent. In response, a group of attorneys and judges created the Uniform Law Commission (ULC). Smoothing out laws between states promotes business and lowers the burdens for moving from one place to another state. The ULC has proposed various standardized, or uniform, regulations, including the UPOAA.
If a state has adopted all of the UPOAA, its laws will match other states that have signed-on to the UPOAA. Therefore, you and your estate planning professionals can create a power of attorney document that is tailored to your needs and enforceable in other UPOAA states.
Key Elements of UPOAA
Each state can write laws that define the validity, scope, or enforceability of all power of attorney agreements. For this reason, state POA laws differ on subjects such as:
- Who is a valid agent.
- When is an agent allowed to begin making decisions on the principal’s behalf.
- What powers can be delegated to an agent.
- Compensation for the services an agent provides.
- How a power of attorney relationship can be terminated.
The UPOAA attempts to address these issues to create standardization. When you draft your power of attorney, it is good to understand where it will be valid. The last thing you want is for the agreement to be unenforceable right when you need it.
The UPOAA is broken into the four following articles.
General Provisions
This article is where the most pertinent information is located. Here, the ULC drafters attempt to balance protecting the principal with sections that allow an agent to act broadly on the principal’s behalf.
For example, one key difference between state laws is how to create a durable power of attorney. To be considered durable, the power of attorney agreement must remain in effect if the principal suffers an incapacitating event. Traditionally, powers of attorney would automatically terminate if the principal was incapacitated unless the contract explicitly addressed durability.
The UPOAA flips the traditional standard. Instead, a power of attorney created under the UPOAA lasts through the principal’s incapacity unless the agreement itself calls for termination. This can help carry out your estate planning wishes if you sustain a serious illness or tragedy.
Another critical section of the general provisions of the UPOAA outlines an agent’s duties on behalf of the principal. The agent is a fiduciary of the principal, meaning they must take actions to benefit the principal. However, the UPOAA protects agents who also benefit from their efforts, so long as the principal received some improved standing. An agent would not be held liable under the UPOAA if there was a conflict of interest so long as they act with "care, competence, and diligence for the best interest of the principal."
Authority
The second section of the UPOAA concerns what authority is granted through a power of attorney. The Act requires that the principal expressly grant authority to carry out certain actions. This means that the power of attorney agreement must contain language giving the agent these powers.
Without an express grant, the agent cannot do any of the following:
- Create or change beneficiaries.
- Alter rights of survivorship.
- Give gifts.
- Make any changes to an inter vivos (living) trust.
- Further delegate the authority created by the power of attorney.
- Control the principal’s electronic communications.
- Waive certain entitlements for the principal.
The UPOAA Authority Section states that, outside of these express restrictions, the agent’s powers should be interpreted broadly. Therefore, if someone questions whether an agent has the right to take action in a UPOAA jurisdiction, the agent receives the benefit of the doubt.
Statutory Form
The third section of the UPOAA provides a general form and example of plain language to create a power of attorney. By following the included form, you can rely on the agreement being enforceable. However, these templates are difficult to tailor to your specific needs.
Additionally, this section has an example of how signatures should be collected. The UPOAA requires newly created powers of attorney to be notarized. Following this requirement will help an agent defeat any questions of the agreement’s validity.
Other Provisions
Finally, there are a few miscellaneous areas of law addressed by the UPOAA’s fourth section. Crucially, one provision clarifies that powers of attorney created before the UPOAA are valid as long as they complied with the law at the time. Not all agreements need to be updated when a state joins the UPOAA.
States That Have Adopted the Uniform Power of Attorney Act
In 2007, New Mexico was the first state to adopt the UPOAA. Since then, the number of states where the UPOAA is the law has grown to 28. In 2020 alone, Kentucky and South Dakota enacted the standardized law.
Where and when the UPOAA was adopted.
| State | Year Enacted |
|---|---|
| New Mexico | 2007 |
| Idaho | 2008 |
| Colorado | 2009 |
| Maine | 2009 |
| Nevada | 2009 |
| Wisconsin | 2010 |
| Virginia | 2010 |
| Maryland | 2010 |
| Montana | 2011 |
| Alabama | 2011 |
| Arkansas | 2011 |
| West Virginia | 2012 |
| Nebraska | 2012 |
| Oklahoma | 2021 |
| Ohio | 2012 |
| Pennsylvania | 2014 |
| Hawaii | 2014 |
| Iowa | 2014 |
| Connecticut | 2015 |
| Utah | 2016 |
| Washington | 2016 |
| South Carolina | 2016 |
| Texas | 2017 |
| Wyoming | 2017 |
| New Hampshire | 2017 |
| North Carolina | 2017 |
| Georgia | 2018 |
| Kentucky | 2020 |
| South Dakota | 2020 |
| Washington DC | 2022 |
Additionally, Massachusetts and Vermont have introduced legislation to approve the UPOAA.
In Massachusetts, the House Bill No. 1598 adopting the UPOAA is pending concurrence, with a reporting date extended to April 15th 2022, and now it is waiting for further steps.
Similarly, in Vermont, an act adopting the House Bill 536 UPOAA was read to the House on January 1st, 2022, and is waiting for further steps.
The House Bill B121 which would enact the UPOAA in the District of Columbia is currently in public hearings, with the last one having occurred on May 13th, 2021, and is also waiting for further steps.
On November 1st, 2021, House Bill 2548 went into effect in Oklahoma. This bill adopts the UPOAA and replaces the Uniform Durable Power of Attorney Act of 1979 which was previously adopted by Oklahoma in 1988.
This bill repealed statutory provisions in Oklahoma that allowed executing a durable power of attorney for healthcare decisions.
However, on April 29, 2022, Governor Stitt approved emergency legislation (Senate Bill 1596) that allows the execution of a durable power of attorney to make healthcare decisions in Oklahoma.
In Washington D.C. Bill 24-0121 was signed by Mayor Muriel Bowser On November 21, 2022.
By signing this bill and enacting it, along with Act Number A24-0654, the UPOAA was put into effect in the nation’s capital.
Having a valid power of attorney can be strong protection against unknown future events. Knowing the states where you can craft a UPOAA compliant agreement is a vital consideration.
If you are exploring how a power of attorney can help you, Lawdistrict.com is one of the leading online sources for information on this topic. We have step-by-step guides to help you create a tailored power of attorney that suits your needs. Learn more by exploring LawDistrict’s quick and easy contract maker today!
Helpful Resources:
In pursuit of standardized laws across the U.S., numerous states have enacted the Uniform Power of Attorney Act (UPOAA) in order to allow Americans to anticipate that their power of attorney agreement will be upheld if they move to another location. Traditionally, powers of attorney are governed by state law and have significant differences from one locale to another.
A power of attorney is a legally binding contractual agreement that assigns decision-making ability to another individual. The principal allows an attorney in fact, also known as an agent, to agree to business deals, buy, sell, or transfer assets, or make medical decisions on the principal’s behalf. Having a valid and enforceable power of attorney is a vital aspect of comprehensive estate planning.
However, if specific provisions of a power of attorney agreement are not valid where you are located, your planning can be upended. Therefore, states that adopt the UPOAA provide their residents the peace of mind of knowing their POA will be upheld in other UPOAA compliant jurisdictions.
Read more: Durable vs General POA
What Is the Uniform Power of Attorney Act?
As travel and commerce between the states have grown easier in the past century, the problem of differing state laws has become more prominent. In response, a group of attorneys and judges created the Uniform Law Commission (ULC). Smoothing out laws between states promotes business and lowers the burdens for moving from one place to another state. The ULC has proposed various standardized, or uniform, regulations, including the UPOAA.
If a state has adopted all of the UPOAA, its laws will match other states that have signed-on to the UPOAA. Therefore, you and your estate planning professionals can create a power of attorney document that is tailored to your needs and enforceable in other UPOAA states.
Key Elements of UPOAA
Each state can write laws that define the validity, scope, or enforceability of all power of attorney agreements. For this reason, state POA laws differ on subjects such as:
- Who is a valid agent.
- When is an agent allowed to begin making decisions on the principal’s behalf.
- What powers can be delegated to an agent.
- Compensation for the services an agent provides.
- How a power of attorney relationship can be terminated.
The UPOAA attempts to address these issues to create standardization. When you draft your power of attorney, it is good to understand where it will be valid. The last thing you want is for the agreement to be unenforceable right when you need it.
The UPOAA is broken into the four following articles.
General Provisions
This article is where the most pertinent information is located. Here, the ULC drafters attempt to balance protecting the principal with sections that allow an agent to act broadly on the principal’s behalf.
For example, one key difference between state laws is how to create a durable power of attorney. To be considered durable, the power of attorney agreement must remain in effect if the principal suffers an incapacitating event. Traditionally, powers of attorney would automatically terminate if the principal was incapacitated unless the contract explicitly addressed durability.
The UPOAA flips the traditional standard. Instead, a power of attorney created under the UPOAA lasts through the principal’s incapacity unless the agreement itself calls for termination. This can help carry out your estate planning wishes if you sustain a serious illness or tragedy.
Another critical section of the general provisions of the UPOAA outlines an agent’s duties on behalf of the principal. The agent is a fiduciary of the principal, meaning they must take actions to benefit the principal. However, the UPOAA protects agents who also benefit from their efforts, so long as the principal received some improved standing. An agent would not be held liable under the UPOAA if there was a conflict of interest so long as they act with "care, competence, and diligence for the best interest of the principal."
Authority
The second section of the UPOAA concerns what authority is granted through a power of attorney. The Act requires that the principal expressly grant authority to carry out certain actions. This means that the power of attorney agreement must contain language giving the agent these powers.
Without an express grant, the agent cannot do any of the following:
- Create or change beneficiaries.
- Alter rights of survivorship.
- Give gifts.
- Make any changes to an inter vivos (living) trust.
- Further delegate the authority created by the power of attorney.
- Control the principal’s electronic communications.
- Waive certain entitlements for the principal.
The UPOAA Authority Section states that, outside of these express restrictions, the agent’s powers should be interpreted broadly. Therefore, if someone questions whether an agent has the right to take action in a UPOAA jurisdiction, the agent receives the benefit of the doubt.
Statutory Form
The third section of the UPOAA provides a general form and example of plain language to create a power of attorney. By following the included form, you can rely on the agreement being enforceable. However, these templates are difficult to tailor to your specific needs.
Additionally, this section has an example of how signatures should be collected. The UPOAA requires newly created powers of attorney to be notarized. Following this requirement will help an agent defeat any questions of the agreement’s validity.
Other Provisions
Finally, there are a few miscellaneous areas of law addressed by the UPOAA’s fourth section. Crucially, one provision clarifies that powers of attorney created before the UPOAA are valid as long as they complied with the law at the time. Not all agreements need to be updated when a state joins the UPOAA.
States That Have Adopted the Uniform Power of Attorney Act
In 2007, New Mexico was the first state to adopt the UPOAA. Since then, the number of states where the UPOAA is the law has grown to 28. In 2020 alone, Kentucky and South Dakota enacted the standardized law.
Where and when the UPOAA was adopted.
| State | Year Enacted |
|---|---|
| New Mexico | 2007 |
| Idaho | 2008 |
| Colorado | 2009 |
| Maine | 2009 |
| Nevada | 2009 |
| Wisconsin | 2010 |
| Virginia | 2010 |
| Maryland | 2010 |
| Montana | 2011 |
| Alabama | 2011 |
| Arkansas | 2011 |
| West Virginia | 2012 |
| Nebraska | 2012 |
| Oklahoma | 2021 |
| Ohio | 2012 |
| Pennsylvania | 2014 |
| Hawaii | 2014 |
| Iowa | 2014 |
| Connecticut | 2015 |
| Utah | 2016 |
| Washington | 2016 |
| South Carolina | 2016 |
| Texas | 2017 |
| Wyoming | 2017 |
| New Hampshire | 2017 |
| North Carolina | 2017 |
| Georgia | 2018 |
| Kentucky | 2020 |
| South Dakota | 2020 |
| Washington DC | 2022 |
Additionally, Massachusetts and Vermont have introduced legislation to approve the UPOAA.
In Massachusetts, the House Bill No. 1598 adopting the UPOAA is pending concurrence, with a reporting date extended to April 15th 2022, and now it is waiting for further steps.
Similarly, in Vermont, an act adopting the House Bill 536 UPOAA was read to the House on January 1st, 2022, and is waiting for further steps.
The House Bill B121 which would enact the UPOAA in the District of Columbia is currently in public hearings, with the last one having occurred on May 13th, 2021, and is also waiting for further steps.
On November 1st, 2021, House Bill 2548 went into effect in Oklahoma. This bill adopts the UPOAA and replaces the Uniform Durable Power of Attorney Act of 1979 which was previously adopted by Oklahoma in 1988.
This bill repealed statutory provisions in Oklahoma that allowed executing a durable power of attorney for healthcare decisions.
However, on April 29, 2022, Governor Stitt approved emergency legislation (Senate Bill 1596) that allows the execution of a durable power of attorney to make healthcare decisions in Oklahoma.
In Washington D.C. Bill 24-0121 was signed by Mayor Muriel Bowser On November 21, 2022.
By signing this bill and enacting it, along with Act Number A24-0654, the UPOAA was put into effect in the nation’s capital.
Having a valid power of attorney can be strong protection against unknown future events. Knowing the states where you can craft a UPOAA compliant agreement is a vital consideration.
If you are exploring how a power of attorney can help you, Lawdistrict.com is one of the leading online sources for information on this topic. We have step-by-step guides to help you create a tailored power of attorney that suits your needs. Learn more by exploring LawDistrict’s quick and easy contract maker today!
Helpful Resources:
Most Popular Posts
Numerous states have enacted the Uniform Power of Attorney Act (UPOAA) in order to allow Americans to anticipate that their power of attorney...
The U.S. is one of the only developed countries with no national paid family leave program.