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1993-10-10
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Section 1. Definition. A durable power of attorney is a power of
attorney by which a principal designates another his attorney in
fact in writing and the writing contains the words "This power of
attorney shall not be affected by subsequent disability or
incapacity of the principal," or "This power of attorney shall
become effective upon the disability or incapacity of the
principal," or similar words showing the intent of the principal
that the authority conferred shall be exercisable notwithstanding
the principal's subsequent disability or incapacity.
Section 2. Durable Power of Attorney Not Affected by Disability.
All acts done by an attorney in fact pursuant to a durable power
of attorney during any period of disability or incapacity of the
principal have the same effect and inure to the benefit of and
bind the principal and his successors in interest as if the
principal were competent and not disabled.
Section 3. Relation of Attorney in Fact to Court-appointed
Fiduciary. (a) If, following execution of a durable power of
attorney, a court of the principal's domicile appoints a
conservator, guardian of the estate, or other fiduciary charged
with the management of all of the principal's property or all of
his property except specified exclusions, the attorney in fact is
accountable to the fiduciary as well as to the principal. The
fiduciary has the same power or revoke or amend the power of
attorney that the principal would have had if he were not
disabled or incapacitated.
(b) A principal may nominate, by a durable power of attorney, the
conservator, guardian of his estate, or guardian of his person,
for consideration by the court if protective proceedings for the
p73 principal's person or estate are thereafter commenced. The court
shall make its appointment with the principal's most recent
nomination in a durable power of attorney except for good cause
shown.
Section 4. (a) The death of a principal who has executed a
written power of attorney, durable or otherwise, does not revoke
or terminate the agency as to the attorney in fact or other
person, who, without actual knowledge of the death of the
principal, acts in good faith under the power. Any action so
taken, unless otherwise invalid or unenforceable, binds
successors in interest to the principal.
(b) The disability or incapacity of a principal who has
previously executed a written power of attorney that is not a
durable power of attorney that is not a durable power does not
revoke or terminate the agency as to the attorney in fact or
other person, who, without actual knowledge of the disability or
incapacity of the principal, acts in good faith under the power.
Any action so taken, unless otherwise invalid or unenforceable,
binds the principal and his successors in interest.
Section 5. Proof of Continuance of Durable and Other Powers of
Attorney by Affidavit. As to acts undertaken in good faith
reliance thereon, an affidavit executed by the attorney in fact
under a power of attorney, durable or otherwise, stating that he
did not have at the time of exercise of the power actual
knowledge of the termination of the power by revocation or of the
principal's death, disability, or incapacity is conclusive proof
of the nonrevocation or nontermination of the power at that time.
If the exercise of that power of attorney requires execution and
delivery of any instrument that is recordable, the affidavit when
authenticated for record is likewise recordable. This section
does not affect any provision in a power of attorney for its
termination by expiration of time or occurrence of an event other
than express revocation or a change in the principal's capacity.
Section 6. Uniformity of Application and Construction. This Act
shall be applied and construed to effectuate its general purpose
to make uniform the law with respect to the subject of this Act
among the states enacting it.
Section 7. Short title. This Act may be cited as the Uniform
Durable Power of Attorney Act.