Bill Text: IA SF2168 | 2013-2014 | 85th General Assembly | Introduced

NOTE: There are more recent revisions of this legislation. Read Latest Draft

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Bill Title: A bill for an act creating the Iowa uniform power of attorney Act and providing penalties and including applicability provisions. (Formerly SSB 3116.) Effective 7-1-14.

Spectrum: Committee Bill

Status: (Passed) 2014-04-10 - Signed by Governor. S.J. 762. [SF2168 Detail]

Download: Iowa-2013-SF2168-Introduced.html

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Senate File 2168 - Introduced
SENATE FILE 2168
BY COMMITTEE ON JUDICIARY
(SUCCESSOR TO SSB 3116)
A BILL FOR
An Act creating the Iowa uniform power of attorney Act and
providing penalties and including applicability provisions.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:
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Section 1. Section 144A.7, subsection 1, paragraph a, Code
2014, is amended to read as follows:
a. The attorney in fact designated to make treatment
decisions for the patient should such person be diagnosed as
suffering from a terminal condition, if the designation is in
writing and complies with chapter 144B or section 633B.1 .
Sec. 2. Section 231E.3, subsection 15, Code 2014, is amended
to read as follows:
15. “Power of attorney” means a durable power of attorney
for health care as defined in section 144B.1 or a power of
attorney that becomes effective upon the disability of the
principal as described in section 633B.1 executed pursuant to
chapter 633B .
Sec. 3. NEW SECTION . 633B.101 Title.
This chapter shall be known and may be cited as the “Iowa
Uniform Power of Attorney Act” .
Sec. 4. NEW SECTION . 633B.102 Definitions.
1. “Agent” means a person granted authority to act for a
principal under a power of attorney, whether denominated an
agent, attorney in fact, or otherwise. The term includes an
original agent, coagent, successor agent, and a person to which
an agent’s authority is delegated.
2. “Conservator” or “conservatorship” means a conservator
appointed or conservatorship established pursuant to sections
633.570 and 633.572 or a similar provision of the laws of
another state.
3. “Durable” , with respect to a power of attorney, means not
terminated by the principal’s incapacity.
4. “Electronic” means relating to technology having
electrical, digital, magnetic, wireless, optical,
electromagnetic, or similar capabilities.
5. “Good faith” means honesty in fact.
6. “Guardian” or “guardianship” means a guardian appointed
or a guardianship established pursuant to sections 633.556 and
633.560 or a similar provision of the laws of another state.
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7. “Incapacity” means the inability of an individual to
manage property or business affairs because the individual is
any of the following:
a. An individual whose decision-making capacity is so
impaired that the individual is unable to make, communicate,
or carry out important decisions concerning the individual’s
financial affairs.
b. Missing.
c. Detained, including but not limited to an individual
incarcerated in a penal system.
d. Outside the United States and unable to return.
8. “Person” means an individual, corporation, business
trust, estate, trust, partnership, limited liability company,
association, joint venture, public corporation, government or
governmental subdivision, agency, or instrumentality, or any
other legal or commercial entity.
9. “Power of attorney” means a writing or other record
that grants authority to an agent to act in the place of the
principal, whether or not the term “power of attorney” is used.
10. “Presently exercisable general power of appointment” ,
with respect to property or a property interest subject to
a power of appointment, means power exercisable at the time
in question to vest absolute ownership in the principal
individually, the principal’s estate, the principal’s
creditors, or the creditors of the principal’s estate. The
term includes a power of appointment not exercisable until
the occurrence of a specified event, the satisfaction of an
ascertainable standard, or the passage of a specified period
of time only after the occurrence of the specified event, the
satisfaction of the ascertainable standard, or the passage of
the specified period of time. The term does not include a
power exercisable in a fiduciary capacity or only by will.
11. “Principal” means an individual who grants authority to
an agent in a power of attorney.
12. “Property” means anything that may be the subject of
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ownership, whether real or personal, or legal or equitable, or
any interest or right therein.
13. “Record” means information that is inscribed on a
tangible medium or that is stored in an electronic or other
medium and is retrievable in perceivable form.
14. “Sign” means, with present intent to authenticate or
adopt a record, to do any of the following:
a. Execute or adopt a tangible symbol.
b. Attach to or logically associate with the record an
electronic sound, symbol, or process.
15. “State” means a state of the United States, the District
of Columbia, Puerto Rico, the United States Virgin Islands, or
any territory or insular possession subject to the jurisdiction
of the United States.
16. “Stocks and bonds” means stocks, bonds, mutual funds,
and all other types of securities and financial instruments,
whether held directly, indirectly, or in any other manner. The
term does not include commodity futures contracts and call or
put options on stocks or stock indexes.
Sec. 5. NEW SECTION . 633B.103 Applicability.
This chapter applies to all powers of attorney except for the
following:
1. A power to the extent it is coupled with an interest
of the agent in the subject of the power, including but not
limited to a power given to or for the benefit of a creditor in
connection with a credit transaction.
2. A power to make health care decisions.
3. A proxy or other delegation to exercise voting rights or
management rights with respect to an entity.
4. A power created on a form prescribed by a government
or governmental subdivision, agency, or instrumentality for a
governmental purpose.
Sec. 6. NEW SECTION . 633B.104 Durability of power of
attorney.
A power of attorney created under this chapter is durable
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unless the power of attorney expressly provides that it is
terminated by the incapacity of the principal.
Sec. 7. NEW SECTION . 633B.105 Execution.
A power of attorney must be signed by the principal or in
the principal’s conscious presence by another individual, other
than any prospective agent, directed by the principal to sign
the principal’s name on the power of attorney. A power of
attorney must be acknowledged before a notary public or other
individual authorized by law to take acknowledgments. An
agent named in the power of attorney shall not notarize the
principal’s signature. An acknowledged signature on a power of
attorney is presumed to be genuine.
Sec. 8. NEW SECTION . 633B.106 Validity.
1. A power of attorney executed in this state on or
after July 1, 2014, is valid if the execution of the power of
attorney complies with section 633B.105.
2. A power of attorney executed in this state before July
1, 2014, is valid if the execution of the power of attorney
complied with the law of this state as it existed at the time
of execution.
3. A power of attorney executed other than in this state
is valid in this state if, when the power of attorney was
executed, the execution complied with any of the following:
a. The law of the jurisdiction that determines the meaning
and effect of the power of attorney pursuant to section
633B.107.
b. The requirements for a military power of attorney
pursuant to 10 U.S.C. §1044b, as amended.
4. Except as otherwise provided by law, a photocopy or
electronically transmitted copy of an original power of
attorney has the same effect as the original.
Sec. 9. NEW SECTION . 633B.107 Meaning and effect.
The meaning and effect of a power of attorney is determined
by the law of the jurisdiction indicated in the power of
attorney and, in the absence of an indication of jurisdiction,
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by the law of the jurisdiction in which the power of attorney
was executed.
Sec. 10. NEW SECTION . 633B.108 Nomination of conservator or
guardian —— relation of agent to court-appointed fiduciary.
1. Under a power of attorney, a principal may nominate
a conservator of the principal’s estate or guardian of
the principal’s person for consideration by the court if
proceedings for the principal’s estate or person are begun
after the principal executes the power of attorney. Except
for good cause shown or disqualification, the court shall make
its appointment in accordance with the principal's most recent
nomination. This section does not prohibit an individual
from executing a petition for the voluntary appointment of a
guardian or conservator on a standby basis pursuant to sections
633.560 and 633.591.
2. If, after a principal executes a power of attorney,
a court appoints a conservator of the principal’s estate or
other fiduciary charged with the management of some or all of
the principal’s property, the power of attorney is suspended
unless the power of attorney provides otherwise or unless the
court appointing the conservator decides the power of attorney
should continue. If the power of attorney continues, the agent
is accountable to the fiduciary as well as to the principal.
The power of attorney shall be reinstated upon termination of
the conservatorship as a result of the principal regaining
capacity.
Sec. 11. NEW SECTION . 633B.109 When power of attorney
effective.
1. A power of attorney is effective when executed unless
the principal provides in the power of attorney that it becomes
effective at a future date or upon the occurrence of a future
event or contingency.
2. If a power of attorney becomes effective upon the
occurrence of a future event or contingency, the principal,
in the power of attorney, may authorize one or more persons
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to determine in a writing or other record that the event or
contingency has occurred.
3. If a power of attorney becomes effective upon the
principal’s incapacity and the principal has not authorized
a person to determine whether the principal is incapacitated
or the person authorized is unable or unwilling to make the
determination, the power of attorney becomes effective upon a
determination in a writing or other record by the occurrence
of any of the following:
a. A licensed physician or licensed psychologist determines
that the principal is incapacitated.
b. A licensed attorney at law, a judge, or an appropriate
governmental official determines that the principal is
incapacitated.
4. A person authorized by the principal in the power of
attorney to determine that the principal is incapacitated may
act as the principal’s personal representative pursuant to the
federal Health Insurance Portability and Accountability Act of
1996, Pub. L. No. 104-191, including amendments thereto and
regulations promulgated thereunder, to obtain access to the
principal’s health care information and to communicate with the
principal’s health care provider.
Sec. 12. NEW SECTION . 633B.110 Termination —— power of
attorney or agent authority.
1. A power of attorney terminates when any of the following
occur:
a. The principal dies.
b. The principal becomes incapacitated, if the power of
attorney is not durable.
c. The principal revokes the power of attorney.
d. The power of attorney provides that it terminates.
e. The purpose of the power of attorney is accomplished.
f. The principal revokes the agent’s authority or the agent
dies, becomes incapacitated, or resigns, and the power of
attorney does not provide for another agent to act under the
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power of attorney.
2. An agent’s authority terminates when any of the following
occur:
a. The principal revokes the authority.
b. The agent dies, becomes incapacitated, or resigns.
c. An action is filed for the dissolution or annulment
of the agent’s marriage to the principal or for their legal
separation, unless the power of attorney otherwise provides.
d. The power of attorney terminates.
3. Unless the power of attorney otherwise provides, an
agent’s authority is exercisable until the agent’s authority
terminates under subsection 2, notwithstanding a lapse of time
since the execution of the power of attorney.
4. Termination of a power of attorney or an agent’s
authority under this section is not effective as to the
agent or another person that, without actual knowledge of the
termination, acts in good faith under the power of attorney.
An act so performed, unless otherwise invalid or unenforceable,
binds the principal and the principal’s successors in interest.
5. Incapacity of the principal of a power of attorney
that is not durable does not revoke or terminate the power of
attorney as to an agent or other person that, without actual
knowledge of the incapacity, acts in good faith under the power
of attorney. An act so performed, unless otherwise invalid
or unenforceable, binds the principal and the principal’s
successors in interest.
6. Except as provided in section 633B.103, the execution of
a general or plenary power of attorney revokes all general or
plenary powers of attorney previously executed in this state by
the principal, but does not revoke a power of attorney limited
to a specific and identifiable action or transaction, which
action or transaction is still capable of performance but has
not yet been fully accomplished by the agent.
Sec. 13. NEW SECTION . 633B.111 Coagents and successor
agents.
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1. A principal may designate two or more persons to act as
coagents. Unless the power of attorney otherwise provides, all
of the following apply to actions of coagents:
a. A power held by coagents shall be exercised by majority
action.
b. If impasse occurs due to the failure to reach a majority
decision, any agent may petition the court to decide the issue,
or a majority of the agents may consent to an alternative form
of dispute resolution.
c. If one or more agents resigns or becomes unable to act,
the remaining coagents may act.
d. If a coagent is unavailable to perform duties because of
absence, illness, or other temporary inability to perform, the
remaining agents may exercise their authority as if they were
the only agents.
2. A principal may designate one or more successor agents
to act if an agent resigns, dies, becomes incapacitated, is
not qualified to serve, or declines to serve. A principal may
grant authority to designate one or more successor agents to an
agent or other person designated by name, office, or function.
Unless the power of attorney otherwise provides, a successor
agent:
a. Has the same authority as that granted to the original
agent.
b. Shall not act until all predecessor agents have resigned,
died, become incapacitated, are no longer qualified to serve,
or have declined to serve.
3. Except as otherwise provided in the power of attorney
and subsection 4, an agent that does not participate in or
conceal a breach of fiduciary duty committed by another agent,
including a predecessor agent, is not liable for the actions
of the other agent.
4. An agent with actual knowledge of a breach or imminent
breach of fiduciary duty by another agent shall notify the
principal and, if the principal is incapacitated, take any
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action reasonably appropriate in the circumstances to safeguard
the principal’s best interest. An agent that fails to notify
the principal or take action as required by this subsection is
liable for the reasonably foreseeable damages that could have
been avoided if the agent had notified the principal or taken
such action.
Sec. 14. NEW SECTION . 633B.112 Reimbursement and
compensation of agent.
Unless the power of attorney otherwise provides, an
agent who is an individual is entitled to reimbursement of
expenses reasonably incurred on behalf of the principal but
not to compensation. If a power of attorney does provide
for compensation or if the agent is a bank or trust company
authorized to administer trusts in Iowa, the compensation must
be reasonable under the circumstances.
Sec. 15. NEW SECTION . 633B.113 Agent’s acceptance.
Except as otherwise provided in the power of attorney,
a person accepts appointment as an agent under a power of
attorney by exercising authority or performing duties as
an agent or by any other assertion or conduct indicating
acceptance.
Sec. 16. NEW SECTION . 633B.114 Agent’s duties.
1. Notwithstanding provisions in the power of attorney, an
agent that has accepted appointment shall act in conformity
with all of the following:
a. In accordance with the principal’s reasonable
expectations to the extent actually known by the agent and
otherwise in the principal’s best interest.
b. In good faith.
c. Only within the scope of authority granted in the power
of attorney.
2. Except as otherwise provided in the power of attorney,
an agent that has accepted appointment shall do all of the
following:
a. Act loyally for the principal’s benefit.
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b. Act so as not to create a conflict of interest that
impairs the agent’s ability to act impartially in the
principal’s best interest.
c. Act with the care, competence, and diligence ordinarily
exercised by agents in similar circumstances.
d. Keep a record of all receipts, disbursements, and
transactions made on behalf of the principal.
e. Cooperate with a person that has authority to make health
care decisions for the principal to carry out the principal’s
reasonable expectations to the extent actually known by the
agent and, otherwise, act in the principal’s best interest.
f. Attempt to preserve the principal’s estate plan, to the
extent actually known by the agent, if preserving the plan is
consistent with the principal’s best interest based upon all
relevant factors, including all of the following:
(1) The value and nature of the principal’s property.
(2) The principal’s foreseeable obligations and need for
maintenance.
(3) Minimization of the principal’s taxes, including
income, estate, inheritance, generation-skipping transfer, and
gift taxes.
(4) The principal’s eligibility for a benefit, a program, or
assistance under a statute or regulation or contract.
3. An agent that acts in good faith is not liable to any
beneficiary under the principal’s estate plan for failure to
preserve the plan.
4. An agent that acts with care, competence, and diligence
for the best interest of the principal is not liable solely
because the agent also benefits from the act or has an
individual or conflicting interest in relation to the property
or affairs of the principal.
5. If an agent is selected by the principal because of
special skills or expertise possessed by the agent or in
reliance on the agent’s representation that the agent has
special skills or expertise, the special skills or expertise
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shall be considered in determining whether the agent has acted
with care, competence, and diligence under the circumstances.
6. Absent a breach of duty to the principal, an agent is not
liable if the value of the principal’s property declines.
7. An agent that exercises authority to delegate to another
person the authority granted by the principal or that engages
another person on behalf of the principal is not liable for an
act, error of judgment, or default of that person if the agent
exercises care, competence, and diligence in selecting and
monitoring the person.
8. Except as otherwise provided in the power of attorney,
an agent is not required to disclose receipts, disbursements,
or transactions conducted on behalf of the principal unless
ordered by a court or requested by the principal, a guardian,
a conservator, another fiduciary acting for the principal, a
governmental agency having authority to protect the welfare
of the principal, or, upon the death of the principal, by the
personal representative or a successor in interest of the
principal’s estate. If an agent receives a request to disclose
such information, the agent shall comply with the request
within thirty days of the request or provide a writing or other
record substantiating why additional time is necessary. Such
additional time shall not exceed thirty days.
Sec. 17. NEW SECTION . 633B.115 Exoneration of agent.
A provision in a power of attorney relieving an agent of
liability for breach of duty is binding on the principal and
the principal’s successors in interest except to the extent the
provision does any of the following:
1. Relieves the agent of liability for a breach of duty
committed dishonestly, with an improper motive, or with
reckless indifference to the purposes of the power of attorney
or the best interest of the principal.
2. Was included in the power of attorney as a result of
an abuse of a confidential or fiduciary relationship with the
principal.
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Sec. 18. NEW SECTION . 633B.116 Judicial relief.
1. The following persons may petition a court to construe a
power of attorney or to review an agent’s conduct:
a. The principal or the agent.
b. A guardian, conservator, or other fiduciary acting for
the principal.
c. A person authorized to make health care decisions for the
principal.
d. The principal’s spouse, parent, or descendant or an
individual who would qualify as a presumptive heir of the
principal.
e. A person named as a beneficiary to receive any property,
benefit, or contractual right upon the principal’s death or as
a beneficiary of a trust created by or for the principal that
has a financial interest in the principal’s estate.
f. A governmental agency having regulatory authority to
protect the welfare of the principal.
g. The principal’s caregiver or another person that
demonstrates sufficient interest in the principal’s welfare.
h. A person asked to accept the power of attorney.
i. A person designated by the principal in the power of
attorney.
2. Upon motion to dismiss by the principal, the court shall
dismiss a petition filed under this section unless the court
finds that the principal lacks the capacity to revoke the
agent’s authority or the power of attorney.
3. The costs of an action under this section shall be
assessed against the principal or the principal’s estate unless
the court determines such costs and fees should be assessed
against the petitioner or the agent for good cause shown.
Sec. 19. NEW SECTION . 633B.117 Agent’s liability.
An agent that violates this chapter is liable to the
principal or the principal’s successors in interest for the
amount required to do both of the following:
1. Restore the value of the principal’s property to what it
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would have been had the violation not occurred.
2. Reimburse the principal or the principal’s successors
in interest for attorney fees and costs paid on the agent’s
behalf.
Sec. 20. NEW SECTION . 633B.118 Agent’s resignation ——
notice.
Unless the power of attorney provides for a different method
for an agent’s resignation, an agent may resign by giving
notice to the principal and, if the principal is incapacitated,
to any of the following:
1. The conservator or guardian, if a conservator or guardian
has been appointed for the principal, and any coagent or
successor agent.
2. If there is no conservator, guardian, or coagent or
successor agent, the agent may give notice to any of the
following:
a. The principal’s caregiver.
b. Any other person reasonably believed by the agent to have
sufficient interest in the principal’s welfare.
c. A governmental agency having regulatory authority to
protect the welfare of the principal.
Sec. 21. NEW SECTION . 633B.119 Acknowledged power of
attorney —— acceptance and reliance.
1. For purposes of this section and section 633B.120,
“acknowledged” means purportedly verified before a notary public
or other individual authorized by law to take acknowledgments.
2. A person that in good faith accepts an acknowledged power
of attorney without actual knowledge that the signature is not
genuine may rely upon the presumption under section 633B.105
that the signature is genuine.
3. A person that in good faith accepts an acknowledged power
of attorney without actual knowledge that the power of attorney
is void, invalid, or terminated, that the purported agent’s
authority is void, invalid, or terminated, or that the agent is
exceeding or improperly exercising the agent’s authority may
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rely upon the power of attorney as if the power of attorney
were genuine, valid, and still in effect, the agent’s authority
were genuine, valid, and still in effect, and the agent had not
exceeded and had not improperly exercised the authority.
4. A person that is asked to accept an acknowledged power
of attorney may request, and rely upon, all of the following
without further investigation:
a. An agent’s certification under penalty of perjury of any
factual matter concerning the principal, agent, or power of
attorney in substantially the same form as set out in section
633B.302.
b. An English translation of the power of attorney if the
power of attorney contains, in whole or in part, language other
than English.
c. An opinion of agent’s counsel as to any matter of law
concerning the power of attorney if the person making the
request provides the reason for the request in a writing or
other record.
5. An English translation or an opinion of counsel requested
under this section shall be provided at the principal’s expense
unless the request is made more than seven business days after
the power of attorney is presented for acceptance.
6. For purposes of this section and section 633B.120, a
person who conducts activities through an employee is without
actual knowledge of a fact relating to a power of attorney,
a principal, or an agent if the employee conducting the
transaction involving the power of attorney is without actual
knowledge of the fact.
Sec. 22. NEW SECTION . 633B.120 Refusal to accept
acknowledged power of attorney —— liability.
1. Except as otherwise provided in subsection 2, all of
the following shall apply to a person’s actions regarding an
acknowledged power of attorney:
a. A person shall either accept an acknowledged power of
attorney or request a certification, a translation, or an
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opinion of counsel under section 633B.119, subsection 4, no
later than seven business days after presentation of the power
of attorney for acceptance.
b. If a person requests a certification, a translation, or
an opinion of counsel under section 633B.199, subsection 4, the
person shall accept the power of attorney no later than five
business days after receipt of the certification, translation,
or opinion of counsel.
c. A person shall not require an additional or different
form of power of attorney for authority granted in the power
of attorney presented.
2. A person is not required to accept an acknowledged power
of attorney if any of the following occur:
a. The person is not otherwise required to engage in a
transaction with the principal in the same circumstances.
b. Engaging in a transaction with the agent or the principal
in the same circumstances would be inconsistent with federal
law.
c. The person has actual knowledge of the termination of the
agent’s authority or of the power of attorney before exercise
of the power.
d. A request for a certification, a translation, or an
opinion of counsel under section 633B.119, subsection 4, is
refused.
e. The person in good faith believes that the power is
not valid or that the agent does not have the authority to
perform the act requested, whether or not a certification, a
translation, or an opinion of counsel under section 633B.119,
subsection 4, has been requested or provided.
f. The person makes, or has actual knowledge that another
person has made, a report to the department of human services
stating a good-faith belief that the principal may be subject
to physical or financial abuse, neglect, exploitation, or
abandonment by the agent or a person acting for or with the
agent.
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3. A person that refuses to accept an acknowledged power of
attorney in violation of this section is subject to both of the
following:
a. A court order mandating acceptance of the power of
attorney.
b. Liability for damages sustained by the principal for
reasonable attorney fees and costs incurred in any action or
proceeding that confirms the validity of the power of attorney
or mandates acceptance of the power of attorney, provided that
any such action must be brought within one year of the initial
request for acceptance of the power of attorney.
Sec. 23. NEW SECTION . 633B.121 Principles of law and
equity.
Unless displaced by a provision of this chapter, the
principles of law and equity supplement this chapter.
Sec. 24. NEW SECTION . 633B.122 Laws applicable to financial
institutions and entities.
This chapter does not supersede any other law applicable to
financial institutions or other entities, and the other law
controls if inconsistent with this chapter.
Sec. 25. NEW SECTION . 633B.123 Remedies under other law.
The remedies under this chapter are not exclusive and do not
abrogate any right or remedy under the law of this state other
than this chapter.
Sec. 26. NEW SECTION . 633B.201 Authority —— specific and
general.
1. An agent under a power of attorney may do any of the
following on behalf of the principal or with the principal’s
property only if the power of attorney expressly grants the
agent the authority and the exercise of the authority is not
otherwise prohibited by another agreement or instrument to
which the authority or property is subject:
a. Create, amend, revoke, or terminate an inter vivos trust.
b. Make a gift.
c. Create or change rights of survivorship.
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d. Create or change a beneficiary designation.
e. Delegate authority granted under the power of attorney.
f. Waive the principal’s right to be a beneficiary of a
joint and survivor annuity, including but not limited to a
survivor benefit under a retirement plan.
g. Exercise fiduciary powers that the principal has
authority to delegate.
h. Disclaim property, including but not limited to a power
of appointment.
2. Notwithstanding a grant of authority to do an act
described in subsection 1, unless the power of attorney
otherwise provides, an agent that is not an ancestor, spouse,
or descendant of the principal shall not exercise authority
under a power of attorney to create in the agent, or in an
individual to whom the agent owes a legal obligation of
support, an interest in the principal’s property, whether
by gift, right of survivorship, beneficiary designation,
disclaimer, or otherwise.
3. Subject to subsections 1, 2, 4, and 5, if a power
of attorney grants an agent authority to do all acts that
a principal could do, the agent has the general authority
described in sections 633B.204 through 633B.216.
4. Unless the power of attorney otherwise provides, a grant
of authority to make a gift is subject to section 633B.217.
5. Subject to subsections 1, 2, and 4, if the subjects over
which authority is granted in a power of attorney are similar
or overlap, the broadest authority controls.
6. Authority granted in a power of attorney is exercisable
with respect to property that the principal has when the power
of attorney is executed or acquires later, whether or not
the property is located in this state and whether or not the
authority is exercised or the power of attorney is executed in
this state.
7. An act performed by an agent pursuant to a power of
attorney has the same effect and inures to the benefit of and
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binds the principal and the principal’s successors in interest
as if the principal had performed the act.
Sec. 27. NEW SECTION . 633B.202 Incorporation of authority.
1. An agent has authority described in this chapter if the
power of attorney refers to general authority with respect
to the descriptive term for the subjects stated in sections
633B.204 through 633B.217 or cites the section in which the
authority is described.
2. A reference in a power of attorney to general authority
with respect to the descriptive term for a subject stated in
sections 633B.204 through 633B.217 or a citation to a section
in sections 633B.204 through 633B.217 incorporates the entire
section as if it were set out in full in the power of attorney.
3. A principal may modify authority incorporated by
reference.
Sec. 28. NEW SECTION . 633B.203 Construction of authority
generally.
Except as otherwise provided in the power of attorney, by
executing a power of attorney that incorporates by reference a
subject described in sections 633B.204 through 633B.217 or that
grants an agent authority to do all acts that a principal could
do pursuant to section 633B.201, subsection 3, a principal
authorizes the agent, with respect to that subject, to do all
of the following:
1. Demand, receive, and obtain by litigation or otherwise,
money or another thing of value to which the principal is,
may become, or claims to be entitled, and conserve, invest,
disburse, or use anything so received or obtained for the
purposes intended.
2. Contract in any manner with any person, on terms
agreeable to the agent, to accomplish a purpose of a
transaction and perform, rescind, cancel, terminate, reform,
restate, release, or modify the contract or another contract
made by or on behalf of the principal.
3. Execute, acknowledge, seal, deliver, file, or record
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any instrument or communication the agent considers desirable
to accomplish a purpose of a transaction, including but not
limited to creating at any time a schedule listing some or all
of the principal’s property and attaching the instrument of
communication to the power of attorney.
4. Initiate, participate in, submit to alternative dispute
resolution, settle, oppose, or propose or accept a compromise
with respect to a claim existing in favor of or against the
principal or intervene in litigation relating to the claim.
5. Seek on the principal’s behalf the assistance of a court
or other governmental agency to carry out an act authorized in
the power of attorney.
6. Engage, compensate, and discharge an attorney,
accountant, discretionary investment manager, expert witness,
or other advisor.
7. Prepare, execute, and file a record, report, or other
document to safeguard or promote the principal’s interest under
a statute, rule, or regulation.
8. Communicate with any representative or employee
of a government or governmental subdivision, agency, or
instrumentality, on behalf of the principal.
9. Access communications intended for, and communicate
on behalf of the principal, whether by mail, electronic
transmission, telephone, or other means.
10. Do any lawful act with respect to the subject and all
property related to the subject.
Sec. 29. NEW SECTION . 633B.204 Real property.
Unless the power of attorney otherwise provides and subject
to section 633B.201, language in a power of attorney granting
general authority with respect to real property authorizes the
agent to do all of the following:
1. Demand, buy, lease, receive, accept as a gift or as
security for an extension of credit, or otherwise acquire or
reject an interest in real property or a right incident to real
property.
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2. Sell; exchange; convey with or without covenants,
representations, or warranties; quitclaim; release; surrender;
retain title for security; encumber; partition; consent to
partitioning; be subject to an easement or covenant; subdivide;
apply for zoning or other governmental permits; plat or consent
to platting; develop; grant an option concerning; lease;
sublease; contribute to an entity in exchange for an interest
in that entity; or otherwise grant or dispose of an interest in
real property or a right incident to real property.
3. Pledge or mortgage an interest in real property or right
incident to real property as security to borrow money or pay,
renew, or extend the time of payment of a debt of the principal
or a debt guaranteed by the principal.
4. Release, assign, satisfy, or enforce by litigation
or otherwise, a mortgage, deed of trust, conditional sale
contract, encumbrance, lien, or other claim to real property
which exists or is asserted.
5. Manage or conserve an interest in real property or a
right incident to real property owned or claimed to be owned
by the principal, including but not limited to by doing all of
the following:
a. Insuring against liability or casualty or other loss.
b. Obtaining or regaining possession of or protecting the
interest or right by litigation or otherwise.
c. Paying, assessing, compromising, or contesting taxes or
assessments or applying for and receiving refunds in connection
with them.
d. Purchasing supplies, hiring assistance or labor, and
making repairs or alterations to the real property.
6. Use, develop, alter, replace, remove, erect, or install
structures or other improvements upon real property in or
incident to which the principal has, or claims to have, an
interest or right.
7. Participate in a reorganization with respect to real
property or an entity that owns an interest in or a right
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incident to real property and receive, hold, and act with
respect to stocks and bonds or other property received in
a plan of reorganization, including by doing any of the
following:
a. By selling or otherwise disposing of the stocks, bonds,
or other property.
b. By exercising or selling an option, right of conversion,
or similar right.
c. By exercising any voting rights in person or by proxy.
8. Change the form of title of an interest in or right
incident to real property.
9. Dedicate to public use, with or without consideration,
easements or other real property in which the principal has,
or claims to have, an interest.
Sec. 30. NEW SECTION . 633B.205 Tangible personal property.
Unless the power of attorney otherwise provides and subject
to section 633B.201, language in a power of attorney granting
general authority with respect to tangible personal property
authorizes the agent to do all of the following:
1. Demand, buy, receive, accept as a gift or as security
for an extension of credit, or otherwise acquire or reject
ownership or possession of tangible personal property or an
interest in tangible personal property.
2. Sell; exchange; convey with or without covenants,
representations, or warranties; quitclaim; release; surrender;
create a security interest in; grant options concerning; lease;
sublease; or, otherwise dispose of tangible personal property
or an interest in tangible personal property.
3. Grant a security interest in tangible personal property
or an interest in tangible personal property as security to
borrow money or pay, renew, or extend the time of payment of a
debt of the principal or a debt guaranteed by the principal.
4. Release, assign, satisfy, or enforce by litigation or
otherwise, a security interest, lien, or other claim on behalf
of the principal, with respect to tangible personal property or
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an interest in tangible personal property.
5. Manage or conserve tangible personal property or an
interest in tangible personal property on behalf of the
principal, including by doing all of the following:
a. Insuring against liability or casualty or other loss.
b. Obtaining or regaining possession of or protecting the
property or interest, by litigation or otherwise.
c. Paying, assessing, compromising, or contesting taxes or
assessments or applying for and receiving refunds in connection
with taxes or assessments.
d. Moving the property from place to place.
e. Storing the property for hire or on a gratuitous
bailment.
f. Using and making repairs, alterations, or improvements to
the property.
6. Change the form of title of an interest in tangible
personal property.
Sec. 31. NEW SECTION . 633B.206 Stocks and bonds.
Unless the power of attorney otherwise provides and subject
to section 633B.201, language in a power of attorney granting
general authority with respect to stocks and bonds authorizes
the agent to do all of the following:
1. Buy, sell, and exchange stocks and bonds.
2. Establish, continue, modify, or terminate an account
with respect to stocks and bonds.
3. Pledge stocks and bonds as security to borrow, pay,
renew, or extend the time of payment of a debt of the
principal.
4. Receive certificates and other evidence of ownership
with respect to stocks and bonds.
5. Exercise voting rights with respect to stocks and bonds
in person or by proxy, enter into voting trusts, and consent to
limitations on the right to vote.
Sec. 32. NEW SECTION . 633B.207 Commodities and options.
Unless the power of attorney otherwise provides and subject
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to section 633B.201, language in a power of attorney granting
general authority with respect to commodities and options
authorizes the agent to do all of the following:
1. Buy, sell, exchange, assign, settle, and exercise
commodity futures contracts and call or put options on stocks
or stock indexes traded on a regulated option exchange.
2. Establish, continue, modify, and terminate option
accounts.
Sec. 33. NEW SECTION . 633B.208 Banks and other financial
institutions.
Unless the power of attorney otherwise provides and subject
to section 633B.201, language in a power of attorney granting
general authority with respect to banks and other financial
institutions authorizes the agent to do all of the following:
1. Continue, modify, and terminate an account or other
banking arrangement made by or on behalf of the principal.
2. Establish, modify, and terminate an account or other
banking arrangement with a bank, trust company, savings and
loan association, credit union, thrift company, brokerage firm,
or other financial institution selected by the agent.
3. Contract for services available from a financial
institution, including but not limited to renting a safe
deposit box or space in a vault.
4. Withdraw, by check, order, electronic funds transfer, or
otherwise, money or property of the principal deposited with or
left in the custody of a financial institution.
5. Receive statements of account, vouchers, notices, and
similar documents from a financial institution and act with
respect to them.
6. Enter a safe deposit box or vault and withdraw or add to
the contents.
7. Borrow money and pledge as security personal property
of the principal necessary to borrow money or pay, renew, or
extend the time of payment of a debt of the principal or a debt
guaranteed by the principal.
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8. Make, assign, draw, endorse, discount, guarantee,
and negotiate promissory notes, checks, drafts, and other
negotiable or nonnegotiable paper of the principal or payable
to the principal or the principal’s order, transfer money,
receive the cash or other proceeds of those transactions, and
accept a draft drawn by a person upon the principal and pay
the promissory note, check, draft, or other negotiable or
nonnegotiable paper when due.
9. Receive for the principal and act upon a sight draft,
warehouse receipt, or other document of title whether tangible
or electronic, or any other negotiable or nonnegotiable
instrument.
10. Apply for, receive, and use letters of credit, credit
and debit cards, electronic transaction authorizations, and
traveler’s checks from a financial institution and give an
indemnity or other agreement in connection with letters of
credit.
11. Consent to an extension of the time of payment with
respect to commercial paper or a financial transaction with a
financial institution.
Sec. 34. NEW SECTION . 633B.209 Operation of entity or
business.
Subject to the terms of a document or an agreement governing
an entity or business or an entity or business ownership
interest, and subject to section 633B.201, and unless the
power of attorney otherwise provides, language in a power of
attorney granting general authority with respect to operation
of an entity or business authorizes the agent to do all of the
following:
1. Operate, buy, sell, enlarge, reduce, or terminate an
ownership interest.
2. Perform a duty or discharge a liability and exercise in
person or by proxy a right, power, privilege, or option that
the principal has, may have, or claims to have.
3. Enforce the terms of an ownership agreement.
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4. Initiate, participate in, submit to alternative dispute
resolution, settle, oppose, or propose or accept a compromise
with respect to litigation to which the principal is a party
because of an ownership interest.
5. Exercise in person or by proxy or enforce by litigation
or otherwise, a right, power, privilege, or option the
principal has or claims to have as the holder of stocks and
bonds.
6. Initiate, participate in, submit to alternative dispute
resolution, settle, oppose, or propose or accept a compromise
with respect to litigation to which the principal is a party
concerning stocks and bonds.
7. Do all of the following with respect to an entity or
business owned solely by the principal:
a. Continue, modify, renegotiate, extend, and terminate a
contract made by or on behalf of the principal with respect
to the entity or business before execution of the power of
attorney.
b. Determine all of the following:
(1) The location of the entity or business operation.
(2) The nature and extent of the entity or business.
(3) The methods of manufacturing, selling, merchandising,
financing, accounting, and advertising employed in the
operation of the entity or business.
(4) The amount and types of insurance carried by the entity
or business.
(5) The mode of engaging, compensating, and dealing with
the employees, accountants, attorneys, or other advisors of the
entity or business.
c. Change the name or form of organization under which the
entity or business is operated and enter into an ownership
agreement with other persons to take over all or part of the
operation of the entity or business.
d. Demand and receive money due or claimed by the principal
or on the principal’s behalf in the operation of the entity or
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business and control and disburse the money in the operation of
the entity or business.
8. Inject needed capital into an entity or business in which
the principal has an interest.
9. Join in a plan of reorganization, consolidation,
conversion, domestication, or merger of the entity or business.
10. Sell or liquidate all or part of the entity or business.
11. Establish the value of an entity or business under a
buyout agreement to which the principal is a party.
12. Prepare, sign, file, and deliver reports, compilations
of information, returns, or other papers with respect to an
entity or business and make related payments.
13. Pay, compromise, or contest taxes, assessments, fines,
or penalties and perform any other act to protect the principal
from illegal or unnecessary taxation, assessments, fines, or
penalties with respect to an entity or business, including but
not limited to attempts to recover, in any manner permitted by
law, money paid before or after the execution of the power of
attorney.
Sec. 35. NEW SECTION . 633B.210 Insurance and annuities.
Unless the power of attorney otherwise provides and subject
to section 633B.201, language in a power of attorney granting
general authority with respect to insurance and annuities
authorizes the agent to do all of the following:
1. Continue, pay the premium or make a contribution on,
modify, exchange, rescind, release, or terminate a contract
procured by or on behalf of the principal which insures or
provides an annuity to either the principal or another person
whether or not the principal is a beneficiary under the
contract.
2. Procure new, different, and additional contracts of
insurance and annuities for the principal and the principal’s
spouse, children, and other dependents, and select the amount,
type of insurance or annuity, and mode of payment.
3. Pay the premium or make a contribution on, modify,
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exchange, rescind, release, or terminate a contract of
insurance or annuity procured by the agent.
4. Apply for and receive a loan secured by a contract of
insurance or annuity.
5. Surrender and receive the cash surrender value on a
contract of insurance or annuity.
6. Exercise an election.
7. Exercise investment powers available under a contract of
insurance or annuity.
8. Change the manner of paying premiums on a contract of
insurance or annuity.
9. Change or convert the type of insurance or annuity with
respect to which the principal has or claims to have authority
described in this section.
10. Apply for and procure a benefit or assistance under a
statute, rule, or regulation to guarantee or pay premiums of a
contract of insurance on the life of the principal.
11. Collect, sell, assign, hypothecate, borrow against, or
pledge the interest of the principal in a contract of insurance
or annuity.
12. Select the form and timing of the payment of proceeds
from a contract of insurance or annuity.
13. Pay, from proceeds or otherwise, compromise or contest,
and apply for refunds in connection with a tax or assessment
levied by a taxing authority with respect to a contract of
insurance or annuity or its proceeds or liability accruing by
reason of the tax or assessment.
Sec. 36. NEW SECTION . 633B.211 Estates, trusts, and other
beneficial interests.
1. In this section, “estate, trust, or other beneficial
interest” means a trust, probate estate, guardianship,
conservatorship, escrow, or custodianship, or a fund from which
the principal is, may become, or claims to be, entitled to a
share or payment.
2. Unless the power of attorney otherwise provides,
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language in a power of attorney granting general authority with
respect to estates, trusts, and other beneficial interests
authorizes the agent to do all of the following:
a. Accept, receive, provide a receipt for, sell, assign,
pledge, or exchange a share in or payment from an estate,
trust, or other beneficial interest.
b. Demand or obtain money or another thing of value to which
the principal is, may become, or claims to be, entitled by
reason of an estate, trust, or other beneficial interest, by
litigation or otherwise.
c. Exercise for the benefit of the principal a presently
exercisable general power of appointment held by the principal.
d. Initiate, participate in, submit to alternative dispute
resolution, settle, oppose, or propose or accept a compromise
with respect to litigation to ascertain the meaning, validity,
or effect of a deed, will, declaration of trust, or other
instrument or transaction affecting the interest of the
principal.
e. Initiate, participate in, submit to alternative dispute
resolution, settle, oppose, or propose or accept a compromise
with respect to litigation to remove, substitute, or surcharge
a fiduciary.
f. Conserve, invest, disburse, or use any assets received
for an authorized purpose.
g. Transfer an interest of the principal in real property,
stocks and bonds, accounts with financial institutions or
securities intermediaries, insurance, annuities, and other
property to the trustee of a revocable trust created by the
principal as settlor.
h. Reject, renounce, disclaim, release, or consent to a
reduction in or modification of a share in or payment from an
estate, trust, or other beneficial interest.
Sec. 37. NEW SECTION . 633B.212 Claims and litigation.
Unless the power of attorney otherwise provides and subject
to section 633B.201, language in a power of attorney granting
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general authority with respect to claims and litigation
authorizes the agent to do all of the following:
1. Assert and maintain before a court or administrative
agency a claim, claim for relief, cause of action,
counterclaim, offset, recoupment, or defense, including but
not limited to an action to recover property or other thing of
value, recover damages sustained by the principal, eliminate
or modify tax liability, or seek an injunction, specific
performance, or other relief.
2. Bring an action to determine adverse claims or intervene
or otherwise participate in litigation.
3. Seek an attachment, garnishment, or other preliminary,
provisional, or intermediate relief and use an available
procedure to effect or satisfy a judgment, order, or decree.
4. Make or accept a tender, offer of judgment, or admission
of facts, submit a controversy on an agreed statement of facts,
consent to examination, and bind the principal in litigation.
5. Submit to alternative dispute resolution, or settle,
propose, or accept a compromise.
6. Waive the issuance and service of process upon the
principal, accept service of process, appear for the principal,
designate persons upon which process directed to the principal
may be served, execute and file or deliver stipulations on the
principal’s behalf, verify pleadings, seek appellate review,
procure and give surety and indemnity bonds, contract and
pay for the preparation and printing of records and briefs,
receive, execute, and file or deliver a consent, waiver,
release, confession of judgment, satisfaction of judgment,
notice, agreement, or other instrument in connection with the
prosecution, settlement, or defense of a claim or litigation.
7. Act for the principal with respect to bankruptcy or
insolvency, whether voluntary or involuntary, concerning
the principal or some other person, or with respect to
a reorganization, receivership, or application for the
appointment of a receiver or trustee which affects an interest
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of the principal in property or other thing of value.
8. Pay a judgment, award, or order against the principal or
a settlement made in connection with a claim or litigation.
9. Receive money or other thing of value paid in settlement
of or as proceeds of a claim or litigation.
Sec. 38. NEW SECTION . 633B.213 Personal and family
maintenance.
1. Unless the power of attorney otherwise provides and
subject to subsection 633B.201, language in a power of attorney
granting general authority with respect to personal and family
maintenance authorizes the agent to do all of the following:
a. Perform the acts necessary to maintain the customary
standard of living of the principal, the principal’s spouse,
and the following individuals, whether living when the power of
attorney is executed or later born:
(1) The principal’s minor children.
(2) The principal’s adult children who are pursuing a
postsecondary school education and are under the age of
twenty-five.
(3) The principal’s parents or the parents of the
principal’s spouse, if the principal had established a pattern
of such payments.
(4) Any other individuals legally entitled to be supported
by the principal.
b. Make periodic payments of child support and other family
maintenance required by a court or governmental agency or an
agreement to which the principal is a party.
c. Provide living quarters for the individuals described in
paragraph “a” by any of the following:
(1) Purchase, lease, or other contract.
(2) Paying the operating costs, including but not limited
to interest, amortization payments, repairs, improvements, and
taxes, for premises owned by the principal or occupied by those
individuals.
d. Provide funds for shelter, clothing, food, appropriate
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education, including postsecondary and vocational education,
and other current living costs for the individuals described
in paragraph “a” to enable those individuals to maintain their
customary standard of living.
e. Pay expenses for necessary health care and custodial care
on behalf of the individuals described in paragraph “a” .
f. Act as the principal’s personal representative pursuant
to the federal Health Insurance Portability and Accountability
Act of 1996, Pub. L. No. 104-191, including amendments thereto
and regulations promulgated thereunder, in making decisions
related to past, present, or future payments for the provision
of health care consented to by the principal or anyone
authorized under the law of this state to consent to health
care on behalf of the principal.
g. Continue any provision made by the principal for
automobiles or other means of transportation, including
registering, licensing, insuring, and replacing them, for the
individuals described in paragraph “a” .
h. Maintain credit and debit accounts for the convenience
of the individuals described in paragraph “a” and open new
accounts.
i. Continue payments or contributions incidental to the
membership or affiliation of the principal in a religious
institution, club, society, order, or other organization.
2. Authority with respect to personal and family
maintenance is neither dependent upon, nor limited by,
authority that an agent may or may not have with respect to
gifts under this chapter.
Sec. 39. NEW SECTION . 633B.214 Benefits from governmental
programs or civil or military service.
1. In this section, “benefits from governmental programs
or civil or military service” means any benefit, program,
or assistance provided under a statute, rule, or regulation
relating to but not limited to social security, Medicare, or
Medicaid.
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2. Unless the power of attorney otherwise provides,
language in a power of attorney granting general authority
with respect to benefits from governmental programs or civil
or military service authorizes the agent to do all of the
following:
a. Execute vouchers in the name of the principal for
allowances and reimbursements payable by the United States, a
foreign government, or a state or subdivision of a state to
the principal, including but not limited to allowances and
reimbursements for transportation of the individuals described
in section 633B.213, subsection 1, paragraph “a” , and for
shipment of the household effects of such individuals.
b. Take possession and order the removal and shipment of
property of the principal from a post, warehouse, depot, dock,
or other place of storage or safekeeping, either governmental
or private, and execute and deliver a release, voucher,
receipt, bill of lading, shipping ticket, certificate, or other
instrument for that purpose.
c. Enroll in, apply for, select, reject, change, amend, or
discontinue, on the principal’s behalf, a benefit or program.
d. Prepare, file, and maintain a claim of the principal for
a benefit or assistance, financial or otherwise, to which the
principal may be entitled under a statute, rule, or regulation.
e. Initiate, participate in, submit to alternative dispute
resolution, settle, oppose, or propose or accept a compromise
with respect to litigation concerning any benefit or assistance
the principal may be entitled to receive under a statute, rule,
or regulation.
f. Receive the financial proceeds of a claim described in
paragraph “d” and conserve, invest, disburse, or use for a
lawful purpose anything so received.
Sec. 40. NEW SECTION . 633B.215 Retirement plans.
1. In this section, “retirement plan” means a plan or
account created by an employer, the principal, or another
individual to provide retirement benefits or deferred
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compensation in which the principal is a participant,
beneficiary, or owner, including but not limited to a plan or
account under the following sections of the Internal Revenue
Code:
a. An individual retirement account in accordance with
section 408.
b. A Roth individual retirement account established under
section 408A.
c. A deemed individual retirement account under section
408(q).
d. An annuity or mutual fund custodial account under section
403(b).
e. A pension, profit-sharing, stock bonus, or other
retirement plan qualified under section 401(a).
f. An eligible deferred compensation plan under section
457(b).
g. A nonqualified deferred compensation plan under section
409A.
2. Unless the power of attorney otherwise provides,
language in a power of attorney granting general authority with
respect to retirement plans authorizes the agent to do all of
the following:
a. Select the form and timing of payments under a retirement
plan and withdraw benefits from a plan.
b. Make a rollover, including a direct trustee-to-trustee
rollover of benefits from one retirement plan to another.
c. Establish a retirement plan in the principal’s name.
d. Make contributions to a retirement plan.
e. Exercise investment powers available under a retirement
plan.
f. Borrow from, sell assets to, or purchase assets from a
retirement plan.
Sec. 41. NEW SECTION . 633B.216 Taxes.
Unless the power of attorney otherwise provides, language in
a power of attorney granting general authority with respect to
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taxes authorizes the agent to do all of the following:
1. Prepare, sign, and file federal, state, local, and
foreign income, gift, payroll, property, Federal Insurance
Contributions Act returns and other tax returns, claims for
refunds, requests for extension of time, petitions regarding
tax matters, and any other tax-related documents, including
receipts, offers, waivers, consents, including but not limited
to consents and agreements under section 2032A of the Internal
Revenue Code, closing agreements, and any power of attorney
required by the Internal Revenue Service or other taxing
authority with respect to a tax year upon which the statute of
limitations has not run.
2. Pay taxes due, collect refunds, post bonds, receive
confidential information, and contest deficiencies determined
by the Internal Revenue Service or other taxing authority.
3. Exercise any election available to the principal under
federal, state, local, or foreign tax law.
4. Act for the principal in all tax matters for all periods
before the Internal Revenue Service or any other taxing
authority.
Sec. 42. NEW SECTION . 633B.217 Gifts.
1. In this section, a gift “for the benefit of” a person
includes a gift to a trust, an account under a uniform
transfers to minors Act, and a qualified state tuition program
exempt from taxation pursuant to section 529 of the Internal
Revenue Code.
2. Unless the power of attorney otherwise provides,
language in a power of attorney granting general authority with
respect to gifts authorizes the agent only to do all of the
following:
a. Make a gift of any of the principal’s property outright
to, or for the benefit of, a person, including but not limited
to by the exercise of a presently exercisable general power
of appointment held by the principal, in an amount per donee
not to exceed the annual dollar limits of the federal gift
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tax exclusion under section 2503(b) of the Internal Revenue
Code without regard to whether the federal gift tax exclusion
applies to the gift or if the principal’s spouse agrees
to consent to a split gift pursuant to section 2513 of the
Internal Revenue Code in an amount per donee not to exceed
twice the annual federal gift tax exclusion limit.
b. Consent to the splitting of a gift made by the
principal’s spouse pursuant to section 2513 of the Internal
Revenue Code in an amount per donee not to exceed the aggregate
annual gift tax exclusions for both spouses.
3. An agent may make a gift of the principal’s property
only as the agent determines is consistent with the principal’s
objectives if actually known by the agent and, if unknown,
as the agent determines is consistent with the principal’s
best interest based on all relevant factors, including but not
limited to all of the following:
a. The value and nature of the principal’s property.
b. The principal’s foreseeable obligations and need for
maintenance.
c. The minimization of taxes, including but not limited to
income, estate, inheritance, generation-skipping transfer, and
gift taxes.
d. Eligibility for a benefit, a program, or assistance under
a statute, rule, or regulation.
e. The principal’s personal history of making or joining in
making gifts.
Sec. 43. NEW SECTION . 633B.301 Power of attorney —— form.
A document substantially in the following form may be used to
create a statutory power of attorney that has the meaning and
effect prescribed by this chapter:
IOWA STATUTORY POWER OF ATTORNEY FORM
1. POWER OF ATTORNEY
This power of attorney authorizes another person (your
agent) to make decisions concerning your property for you (the
principal). Your agent will be able to make decisions and act
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with respect to your property (including but not limited to
your money) whether or not you are able to act for yourself.
The meaning of authority over subjects listed on this form is
explained in the Iowa Uniform Power of Attorney Act, Iowa Code
chapter 633B.
This power of attorney does not authorize the agent to make
health care decisions for you.
You should select someone you trust to serve as your agent.
Unless you specify otherwise, generally the agent’s authority
will continue until you die or revoke the power of attorney or
the agent resigns or is unable to act for you.
Your agent is not entitled to compensation unless you state
otherwise in the optional Special Instructions.
This form provides for designation of one agent. If you
wish to name more than one agent, you may name a coagent in the
optional Special Instructions. Coagents must act by majority
rule unless you provide otherwise in the optional Special
Instructions.
If your agent is unable or unwilling to act for you, your
power of attorney will end unless you have named a successor
agent. You may also name a second successor agent.
This power of attorney becomes effective immediately upon
signature and acknowledgment unless you state otherwise in the
optional Special Instructions.
If you have questions about this power of attorney or the
authority you are granting to your agent, you should seek legal
advice before signing this form.
DESIGNATION OF AGENT
I _________________________ (name of principal) name the
following person as my agent:
Name of Agent ____________________________________________
Agent’s Address __________________________________________
Agent’s Telephone Number _________________________________
DESIGNATION OF SUCCESSOR AGENT(S) (OPTIONAL)
If my agent is unable or unwilling to act for me, I name as
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my successor agent:
Name of Successor Agent __________________________________
Successor Agent’s Address ________________________________
Successor Agent’s Telephone Number _______________________
If my successor agent is unable or unwilling to act for me, I
name as my second successor agent:
Name of Second Successor Agent ___________________________
Second Successor Agent’s Address _________________________
Second Successor Agent’s Telephone Number ________________
GRANT OF GENERAL AUTHORITY
I grant my agent and any successor agent general authority to
act for me with respect to the following subjects as defined in
the Iowa Uniform Power of Attorney Act, Iowa Code chapter 633B:
(Initial each subject you want to include in the agent’s
general authority. If you wish to grant general authority over
all of the subjects you may initial “All Preceding Subjects”
instead of initialing each subject.)
___ Real Property
___ Tangible Personal Property
___ Stocks and Bonds
___ Commodities and Options
___ Banks and Other Financial Institutions
___ Operation of Entity or Business
___ Insurance and Annuities
___ Estates, Trusts, and Other Beneficial Interests
___ Claims and Litigation
___ Personal and Family Maintenance
___ Benefits from Governmental Programs or Civil or Military
Service
___ Retirement Plans
___ Taxes
___ All Preceding Subjects
GRANT OF SPECIFIC AUTHORITY (OPTIONAL)
My agent shall not do any of the following specific acts for
me unless I have initialed the specific authority listed below:
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(Caution: Granting any of the following will give your agent
the authority to take actions that could significantly reduce
your property or change how your property is distributed at
your death. Initial only the specific authority you WANT to
give your agent.)
___ Amend, revoke, or terminate a revocable inter vivos
trust, if authorized by the trust.
___ Agree to the amendment or termination of any other inter
vivos trust.
___ Make a gift to an individual who is not an agent, subject
to the limitations of the Iowa Uniform Power of Attorney Act,
Iowa Code section 633B.217, and any special instructions in
this power of attorney.
Make gifts, either direct or indirect, to my agent acting
under this power of attorney as follows:
___ Any such gift must be approved in writing by
________________; or
___ No third party approval is needed.
___ Authorize another person to exercise the authority
granted under this power of attorney.
___ Waive the principal’s right to be a beneficiary of a
joint and survivor annuity, including a survivor benefit under
a retirement plan.
___ Exercise fiduciary powers that the principal has
authority to delegate.
___ Disclaim or refuse an interest in property, including a
power of appointment.
LIMITATION ON AGENT’S AUTHORITY
An agent that is not my ancestor, spouse, or descendant shall
not use my property to benefit the agent or a person to whom the
agent owes an obligation of support unless I have included that
authority in the optional Special Instructions.
SPECIAL INSTRUCTIONS (OPTIONAL)
You may give special instructions on the following lines:
___________________________________________________________
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___________________________________________________________
___________________________________________________________
___________________________________________________________
___________________________________________________________
___________________________________________________________
___________________________________________________________
___________________________________________________________
___________________________________________________________
___________________________________________________________
___________________________________________________________
_________________________ shall have the authority to
request an accounting of any agent.
EFFECTIVE DATE
This power of attorney is effective immediately upon
signature and acknowledgment unless I have stated otherwise in
the optional Special Instructions.
NOMINATION OF CONSERVATOR AND GUARDIAN (OPTIONAL)
If it becomes necessary for a court to appoint a conservator
of my estate or guardian of my person, I nominate the following
person(s) for appointment:
Name of Nominee for Conservator of My Estate _____________
Nominee’s Address ________________________________________
Nominee’s Telephone Number _______________________________
Name of Nominee for Guardian of My Person ________________
Nominee’s Address ________________________________________
Nominee’s Telephone Number _______________________________
RELIANCE ON THIS POWER OF ATTORNEY
Any person, including my agent, may rely upon the validity of
this power of attorney or a copy of it unless that person knows
it has terminated or is invalid.
SIGNATURE AND ACKNOWLEDGMENT
_____________________________ _________________________
Your Signature Date
_____________________________
Your Name Printed
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_____________________________
_____________________________
Your Address
_____________________________
Your Telephone Number
State of ____________________
County of ___________________
This document was acknowledged before me on _______________
(date), by __________________________ (name of principal)
_____________________________ (Seal, if any)
Signature of Notary
My commission expires ________________
This document prepared by
___________________________________________________________
___________________________________________________________
2. IMPORTANT INFORMATION FOR AGENT
AGENT’S DUTIES
When you accept the authority granted under this power of
attorney, a special legal relationship is created between the
principal and you. This relationship imposes upon you legal
duties that continue until you resign or the power of attorney
is terminated or revoked. You must do all of the following:
Do what you know the principal reasonably expects you to
do with the principal’s property or, if you do not know the
principal’s expectations, act in the principal’s best interest.
Act in good faith.
Do nothing beyond the authority granted in this power of
attorney.
Disclose your identity as an agent whenever you act for the
principal by writing or printing the name of the principal and
signing your own name as agent in the following manner:
_______________________ (principal’s name) by
_______________________ (your signature) as Agent
Unless the Special Instructions in this power of attorney
state otherwise, you must also do all of the following:
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Act loyally for the principal’s benefit.
Avoid conflicts that would impair your ability to act in the
principal’s best interest.
Act with care, competence, and diligence.
Keep a record of all receipts, disbursements, and
transactions made on behalf of the principal.
Cooperate with any person that has authority to make
health care decisions for the principal to do what you know
the principal reasonably expects or, if you do not know the
principal’s expectations, to act in the principal’s best
interest.
Attempt to preserve the principal’s estate plan if you
know the plan and preserving the plan is consistent with the
principal’s best interest.
TERMINATION OF AGENT’S AUTHORITY
You must stop acting on behalf of the principal if you learn
of any event that terminates this power of attorney or your
authority under this power of attorney. Events that terminate
a power of attorney or your authority to act under a power of
attorney include any of the following:
Death of the principal.
The principal’s revocation of the power of attorney or your
authority.
The occurrence of a termination event stated in the power of
attorney.
The purpose of the power of attorney is fully accomplished.
If you are married to the principal, a legal action is
filed with a court to end your marriage, or for your legal
separation, unless the Special Instructions in this power of
attorney state that such an action will not terminate your
authority.
LIABILITY OF AGENT
The meaning of the authority granted to you is defined in the
Iowa Uniform Power of Attorney Act, Iowa Code chapter 633B. If
you violate the Iowa Uniform Power of Attorney Act, Iowa Code
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chapter 633B, or act outside the authority granted, you may be
liable for any damages caused by your violation.
If there is anything about this document or your duties that
you do not understand, you should seek legal advice.
Sec. 44. NEW SECTION . 633B.302 Agent’s certification ——
optional form.
The following optional form may be used by an agent to
certify facts concerning a power of attorney:
IOWA STATUTORY POWER OF ATTORNEY AGENT’S CERTIFICATION FORM
AGENT’S CERTIFICATION OF VALIDITY OF POWER OF ATTORNEY AND
AGENT’S AUTHORITY
State of _________________________
County of ______________________
I, ______________________________ (name of agent), certify
under penalty of perjury that ______________________________
(name of principal) granted me authority as an agent
or successor agent in a power of attorney dated
_____________________.
I further certify all of the following to my knowledge:
The principal is alive and has not revoked the power of
attorney or the Power of Attorney and my authority to act under
the Power of Attorney have not terminated.
If the power of attorney was drafted to become effective
upon the happening of an event or contingency, the event or
contingency has occurred.
If I was named as a successor agent, the prior agent is no
longer able or willing to serve.
__________________________________________________________
__________________________________________________________
__________________________________________________________.
(Insert other relevant statements)
SIGNATURE AND ACKNOWLEDGMENT
_____________________________ _________________________
Agent’s Signature Date
_____________________________
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Agent’s Name Printed
_____________________________
_____________________________
Agent’s Address
_____________________________
Agent’s Telephone Number
This document was acknowledged before me on _______________
(date), by __________________________ (name of agent)
_____________________________ (Seal, if any)
Signature of Notary
My commission expires ________________
This document prepared by
___________________________________________________________
___________________________________________________________
Sec. 45. NEW SECTION . 633B.401 Uniformity of application
and construction.
In applying and construing this chapter, consideration shall
be given to the need to promote uniformity of the law with
respect to the subject matter of this chapter among states that
enact the uniform power of attorney Act.
Sec. 46. NEW SECTION . 633B.402 Relation to Electronic
Signatures in Global and National Commerce Act.
This chapter modifies, limits, and supersedes the federal
Electronic Signatures in Global and National Commerce Act, 15
U.S.C. §7001 et seq., but does not modify, limit, or supersede
section 101(c) of that Act, 15 U.S.C. §7001(c), or authorize
electronic delivery of any of the notices described in section
103(b) of that Act, 15 U.S.C. §7003(b).
Sec. 47. NEW SECTION . 633B.403 Effect on existing powers
of attorney.
1. This chapter applies to a power of attorney, regardless
of whether the power of attorney was created before, on, or
after July 1, 2014.
2. This chapter applies to all proceedings concerning a
power of attorney commenced on or after July 1, 2014.
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3. This chapter applies to all proceedings concerning a
power of attorney commenced before July 1, 2014, unless the
court finds that application of a provision of this chapter
would substantially interfere with the effective conduct of the
proceedings or the rights of the parties or other interested
persons. In that case, the provision does not apply and the
court shall apply prior law.
Sec. 48. REPEAL. Sections 633B.1 and 633B.2, Code 2014,
are repealed.
EXPLANATION
The inclusion of this explanation does not constitute agreement with
the explanation’s substance by the members of the general assembly.
This bill creates the Iowa uniform power of attorney Act and
provides penalties and includes applicability provisions.
Current Code chapter 633B relating to powers of attorney
contains provisions relating to situations in which a power
of attorney is not affected by the death or disability of the
principal and provides notice provisions for the revocation or
termination of a power of attorney.
The bill repeals current Code chapter 633B and replaces
it with the Iowa uniform power of attorney Act, based on
the uniform power of attorney Act, which provides specific
provisions relating to the creation, duties, responsibilities,
and powers of an agent designated in the power of attorney
document to manage the principal’s finances and property. The
bill also provides remedies for abuses committed by an agent
under a power of attorney. The bill defines “agent” to mean a
person who is granted authority to act for a principal under a
power of attorney, whether referred to as an agent, attorney
in fact, or otherwise in the power of attorney document, and
includes an original agent, coagent, successor agent, and a
person to which an agent’s authority is delegated; “person”
means an individual, corporation, business trust, estate,
trust, partnership, limited liability company, association,
joint venture, public corporation, government or governmental
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subdivision, agency, or instrumentality, or any other legal
or commercial entity; and “principal” means an individual who
grants authority to an agent in a power of attorney.
GENERAL PROVISIONS. The bill contains the following general
provisions relating to a power of attorney:
APPLICABILITY. The bill applies to all powers of attorney
other than a durable power of attorney for health care (see
Code chapter 144B), a voting proxy, a power created on a
governmental form for a governmental purpose, and a power
coupled with an interest of the agent such as a creditor’s
right to protect title in pledged collateral.
DURABILITY. A power of attorney is durable unless the power
of attorney expressly provides that it is terminated by the
principal’s incapacity.
EXECUTION. A power of attorney must be signed by the
principal or in the principal’s conscious presence by
another individual (not the prospective agent) directed by
the principal to sign the principal’s name on the power of
attorney. A power of attorney must be acknowledged before a
notary public or other individual authorized by law to take
acknowledgments. An agent named in the power of attorney
cannot notarize the principal’s signature. An acknowledged
signature on a power of attorney is presumed to be genuine.
VALIDITY. A power of attorney is governed by the law of the
jurisdiction indicated in the power of attorney when properly
executed. The bill does not affect the validity of the
following powers of attorney properly executed in Iowa prior to
July 1, 2014: a power of attorney properly executed in Iowa, a
power of attorney properly created under the laws of another
jurisdiction, and a military power of attorney. The bill also
allows the use of a photocopy or electronically transmitted
original.
MEANING AND EFFECT. The meaning and effect of a power of
attorney is determined by the law of the jurisdiction indicated
in the power of attorney and if there is no such indication,
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by the law of the jurisdiction where the power of attorney was
executed.
CONSERVATOR AND GUARDIAN APPOINTMENTS IN A POWER OF
ATTORNEY. A principal can appoint a conservator or guardian in
the power of attorney and specify that an agent’s authority to
act under the power of attorney is suspended during the time a
conservator is acting unless provided otherwise in the power of
attorney or by the court appointing the conservator. The bill
also allows for the appointment of a conservator or guardian on
a standby basis pursuant to Code sections 633.560 and 633.591.
WHEN EFFECTIVE. The bill provides specific rules as when
a power of attorney is effective and provides that unless
otherwise provided, the power of attorney is effective when
executed.
TERMINATION. A power of attorney terminates upon the
death or incapacity (if not durable) of the principal, upon
revocation by the principal, when the power of attorney
specifies a termination date, when the purpose of the power
of attorney is accomplished, or if the agent dies, becomes
incapacitated, or resigns without a named successor. A general
or plenary power of attorney (authorizing the agent to conduct
all of the principal’s personal business and financial affairs)
revokes a general or plenary power of attorney previously
executed in Iowa but does not revoke a power of attorney
limited to a specific purpose if that purpose is still capable
of being fully accomplished by the agent.
COAGENTS AND SUCCESSOR AGENTS. A principal may designate
two or more persons to act as coagents and specifies certain
standards for the actions of coagents. A principal may
designate one or more successor agents to act if an agent
resigns, dies, becomes incapacitated, is not qualified to
serve, or declines to serve.
REIMBURSEMENT AND COMPENSATION. Unless provided otherwise
in the power of attorney, an agent who is an individual is
entitled to reimbursement for expenses incurred on behalf of
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the principal, but not to compensation. An agent that is a
bank or trust company authorized to administer trusts in Iowa
may receive compensation if reasonable under the circumstances.
AGENT’S ACCEPTANCE. Unless otherwise provided in the
power of attorney, a person accepts appointment as an agent
by exercising authority, performing duties, or by any other
assertion or conduct indicating acceptance.
AGENT’S DUTIES. The bill specifies the fiduciary duties
an agent owes a principal under a power of attorney and
provides that an agent that acts in good faith and with care,
competence, and diligence in the best interest of the principal
shall not be liable for the agent’s actions in certain
situations.
EXONERATION OF AGENT. The bill provides that a provision
in a power of attorney that relieves an agent of liability for
breach of duty is binding on the principal except for breaches
committed dishonestly, with an improper motive, or with
reckless indifference to the purposes of the power of attorney
or the best interest of the principal or if the provision was
put into the power of attorney as a result of an abuse of a
confidential or fiduciary relationship with the principal.
JUDICIAL RELIEF. The bill provides that certain persons may
petition a court to construe a power of attorney or review an
agent’s conduct and the costs of the court action shall be paid
by the principal and the principal’s estate unless, for good
cause shown, the costs may be assessed against the petitioner
or the agent.
AGENT’S LIABILITY. An agent that violates the Code chapter
is liable to the principal or the principal’s successors in
interest for the amount required to restore the value of
the principal’s property to what it would have been had the
violation not occurred and to reimburse the principal or the
principal’s successors in interest for the attorney fees and
costs paid on the agent’s behalf.
AGENT RESIGNATION. Unless otherwise provided in the
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power of attorney, an agent may resign by giving notice to
the principal and if the principal is incapacitated, to a
conservator or guardian, principal’s caregiver or other person
with sufficient interest in the welfare of the principal, or to
the appropriate governmental agency.
ACCEPTANCE AND RELIANCE UPON ACKNOWLEDGED POWER OF ATTORNEY.
The bill protects persons who in good faith accept and rely on
an acknowledged power of attorney.
LIABILITY FOR REFUSAL TO ACCEPT ACKNOWLEDGED POWER OF
ATTORNEY. The bill specifies situations where refusals of a
power of attorney are acceptable and unacceptable. A person
that refuses to accept an acknowledged power of attorney in
violation of the bill is subject to a court order mandating
acceptance of the power of attorney and is liable for damages
sustained by the principal and reasonable attorney fees and
costs. Such an action must be brought within one year of the
initial request for acceptance of the power of attorney.
OTHER PROVISIONS. The bill includes provisions relating to
the application of principles of law and equity and the laws of
financial institutions, and remedies under other law.
AUTHORITY PROVISIONS. The bill distinguishes between grants
of specific authority requiring express language in a power of
attorney and grants of general authority.
SPECIFIC GRANT OF AUTHORITY. Specific grants of authority
require specific language granting certain powers to the agent
including powers to create, amend, revoke, or terminate an
inter vivos trust; make a gift; create or change rights of
survivorship; create or change a beneficiary designation;
delegate authority granted under the power of attorney;
waive the principal’s right to be a beneficiary of a joint
and survivor annuity, including a survivor benefit under a
retirement plan; exercise fiduciary powers that the principal
has the authority to delegate; and disclaim property, including
a power of appointment.
GENERAL GRANT OF AUTHORITY. If a power of attorney grants an
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agent authority to do all acts that a principal could do, the
agent has general authority to act on behalf of the principal
with respect to the following subject areas: real property;
tangible personal property; stocks and bonds; commodities and
options; banks and other financial institutions; the operation
of an entity or business; insurance and annuities; estates,
trusts, and other beneficial interests; claims and litigation;
personal and family maintenance; benefits from governmental
programs or civil or military service; retirement plans; taxes;
and gifts. The bill contains specific provisions relating to
the authority granted to an agent in each of the abovementioned
subject areas.
CONSTRUCTION OF AUTHORITY. The bill specifies incidental
types of authority that accompany all authority (specific and
general) granted to an agent under a power of attorney, unless
modified in the power of attorney. Such authority includes the
power to demand, receive, and obtain other items of value to
which a principal is or may be entitled; contract on behalf
of a principal; execute, acknowledge, seal, deliver, file,
or record any instrument or communication necessary for a
transaction; initiate, participate in, submit to alternative
dispute resolution, and settle or accept a claim involving
the principal or intervene in litigation involving the claim;
seek court or other assistance to carry out an act authorized
under the power of attorney; engage, compensate, and discharge
certain professional advisors; prepare, execute, and file
certain documents to safeguard the principal’s interests;
communicate with government agencies; and access certain
communications including electronic communications intended for
the principal.
STATUTORY FORMS. The bill includes suggested statutory
forms for the creation of a power of attorney and for agent
certification of facts relating to a power of attorney
consistent with the provisions of the Code chapter.
MISCELLANEOUS PROVISIONS. The bill provides provisions
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relating to uniform application and construction, the
applicability of the federal Electronic Signatures in Global
and National Commerce Act, and the effect of the bill on
existing powers of attorney.
REPEAL. The bill repeals current Code chapter 633B and makes
conforming Code changes.
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