POWER OF ATTORNEY
A Power of Attorney (POA) can be a particularly useful estate planning tool to help maintain and preserve a person's financial and mental well-being in times of specific need or disability. Although these documents are sometimes believed to represent the surrendering of one's rights to another, POAs are used primarily to extend one's authority to act upon another (the Agent), typically without having any affect on the maker (or Principal).
WHAT IS THE POWER OF ATTORNEY LAW IN KENTUCKY?
Kentucky recently updated the laws concerning the creation and use of powers of attorney. Kentucky Revised Statutes Chapter 457 now provides that only the Principal and not an additional two witnesses is required to sign before a notary public (as would also be needed to sign a self-proving Last Will and Testament) to create a valid POA. Further, the law provides that all newly signed POAs are deemed to be durable, that is, the authority granted to the Agent will be considered to extend beyond any point in time that the Principal should be found to be incompetent without specifically providing in the document for it.
A KENTUCKY POWER OF ATTORNEY GRANTS DEFAULT POWERS TO AGENTS
If you were to sign a POA that granted an Agent the authority to do all of the acts that a Principal could do, Kentucky law would entitle that person the right to perform over a dozen specific actions itemized in the statutes, including the ability to enter into contracts for another, perform banking services, transfer property, represent a person in litigation, hire professionals, and communicate with the government.
WHEN IS EXPRESSED AUTHORITY REQUIRED UNDER KENTUCKY POA?
The authority to perform certain specific tasks or take certain actions for a Principal must be expressly set forth in a Kentucky POA (unless it is otherwise prohibited by another agreement or instrument). For example, the ability to delegate an Agent's authority granted under a POA to another person is prohibited unless that right is allowed by language permitting the assignment. Another significant provision that needs to be specifically stated is whether and to what extent the Agent has the right to make a gift of or give away the Principal's assets.