House Bill 709

AN ACT TO REVISE VARIOUS PROVISIONS OF THE UNIFORM DURABLE POWER OF ATTORNEY; TO PROVIDE THAT A NATURAL PERSON HAVING THE CAPACITY TO CONTRACT MAY EXECUTE A POWER OF ATTORNEY; TO PRESCRIBE THE COMPONENTS OF A LEGALLY SUFFICIENT POWER OF ATTORNEY; TO REQUIRE THAT THE EXECUTION OF POWER OF CONTRACT BE ATTESTED TO BY AT LEAST TWO CREDIBLE WITNESSES; TO AUTHORIZE THE PRINCIPAL TO GRANT POWER OF ATTORNEY TO HIS ATTORNEY IN FACT TO ACT ON HIS BEHALF OVER ALL LAWFUL SUBJECTS AND PURPOSES; TO REQUIRE A WARNING BE INCLUDED ON FORMS OF A DURABLE POWER OF ATTORNEY SOLD OR OTHERWISE DISTRIBUTED IN THIS STATE FOR USE BY A PERSON WHO DOES NOT HAVE THE ADVICE OF LEGAL COUNSEL; TO AMEND SECTIONS 87-3-105, 87-3-107, 87-3-109 AND 87-3-111, MISSISSIPPI CODE OF 1972, IN CONFORMITY TO THE PROVISIONS OF THIS ACT; AND FOR RELATED PURPOSES.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:

SECTION 1. (1) A natural person having the capacity to contract may execute a power of attorney.

(2) A power of attorney is legally sufficient upon satisfactory proof of the following requirements:

(a) That the power of attorney contains the date of its execution;

(b) That the power of attorney is:

(i) Signed by the principal; or

(ii) Signed in the principal's name by another adult in the principal's presence and at the principal's direction; and

(i) Acknowledged before a notary public; or

(ii) Signed by at least two (2) attesting credible witnesses who satisfy the requirements of subsection (3).

(3) If the power of attorney is signed by witnesses, as required in subsection (2)(c), there is a rebuttable presumption that the following requirements are satisfied:

(a) That the credible witnesses are adults at least twenty-one (21) years of age.

(b) That the attorney in fact did not act as a witness.

(c) That each attesting witness signing the power of attorney witnessed the other signing the instrument by the principal or the principal's acknowledgment of the signature or the power of attorney.

SECTION 2. (1) In a power of attorney under this section, a principal may grant authority to an attorney in fact to act on the principal's behalf with respect to all lawful subjects and purposes or with respect to one or more express subjects or purposes. The attorney in fact may be granted authority with regard to the principal's property, personal care, or any other matter.

(2) With regard to property matters, a power of attorney may grant authority to make decisions concerning all or part of the principal's real and personal property, whether owned by the principal at the time of the execution of the power of attorney or later acquired or whether located in this state or elsewhere, without the need for a description of each item or parcel of property.

(3) With regard to personal care, a power of attorney may grant authority to make decisions relating to the personal care of the principal, including, but not limited to, determining where the principal will live, providing meals, hiring household employees, providing transportation, handling mail, and arranging recreation and entertainment.

     SECTION 3.  (1)  Subject to authority of subsection (2), a printed form of a durable power of attorney that is sold or otherwise distributed in this state for use by a person who does not have the advice of legal counsel shall contain, in not less than twelve-point boldface type or a reasonable equivalent thereof, the following warning statements:

Notice to Person Executing Durable Power of Attorney

A durable power of attorney is an important legal document. By signing the durable power of attorney, you are authorizing another person to act for you, the principal. Before signing this durable power of attorney, you should know these important facts:

1. Your agent (attorney in fact) has no duty to act unless you and your agent agree otherwise in writing.

2. This document gives your agent the powers to manage, dispose of, sell, and convey your real and personal property, and to use your property as security if your agent borrows money on your behalf. This document does not give your agent the power to accept or receive any of your property, in trust or otherwise, as a gift, unless you specifically authorize the agent to accept or receive a gift.

3. Your agent will have the right to receive reasonable payment for services provided under this durable power of attorney unless you provide otherwise in this power of attorney.

4. The powers you give your agent will continue to exist for your entire lifetime, unless you state that the durable power of attorney will last for a shorter period of time or unless you otherwise terminate the durable power of attorney. The powers you give your agent in this durable power of attorney will continue to exist even if you can no longer make your own decisions respecting the management of your property.

5. You can amend or change this durable power of attorney only by executing a new durable power of attorney or by executing an amendment through the same formalities as an original. You have the right to revoke or terminate this durable power of attorney at any time, so long as you are competent.

6. This durable power of attorney must be dated and must be acknowledged before a notary public or signed by two (2) attesting witnesses. If it is signed by two (2) attesting witnesses, they must witness either the signing of the power of attorney or the principal's signing or acknowledgment of his or her signature. A durable power of attorney that may affect real property should be acknowledged before a notary public so that it may easily be recorded.

7. You should read this durable power of attorney carefully. When effective, this durable power of attorney will give your agent the right to deal with property that you now have or might acquire in the future. The durable power of attorney is important to you. If you do not understand the durable power of attorney, or any provision of it, then you should obtain the assistance of an attorney or other qualified person.

Notice to Person Accepting the Appointment as Attorney in Fact

By acting or agreeing to act as the agent (attorney in fact) under this power of attorney you assume the fiduciary and other legal responsibilities of an agent. These responsibilities include:

1. The legal duty to act solely in the interest of the principal and to avoid conflicts of interest.

2. The legal duty to keep the principal's property separate and distinct from any other property owned or controlled by you.

You may not transfer the principal's property to yourself without full and adequate consideration or accept a gift of the principal's property unless this power of attorney specifically authorizes you to transfer property to yourself or accept a gift of the principal's property. If you transfer the principal's property to yourself without specific authorization in the power of attorney, you may be prosecuted for fraud and/or embezzlement. If the principal is sixty-five (65) years of age or older at the time that the property is transferred to you without authority, you may also be prosecuted for elder abuse under Section 43-47-19 of the Mississippi Vulnerable Persons Act. In addition to criminal prosecution, you may also be sued in civil court.

I have read the foregoing notice and I understand the legal and fiduciary duties that I assume by acting or agreeing to act as the agent (attorney in fact) under the terms of this power of attorney.

Date:

________________________________

(Signature of agent)

________________________________

(Print name of agent)

(2) Nothing in subsection (1) invalidates any transaction in which a third person relied in good faith on the authority created by the durable power of attorney.

SECTION 4. Section 87-3-105, Mississippi Code of 1972, is amended as follows:

87-3-105. A durable power of attorney is a power of attorney by which a principal designates another his attorney in fact in writing and the writing contains any of the following statements:

(a) "This power of attorney shall not be affected by subsequent * * * incapacity of the principal."; or

(b) "This power of attorney shall become effective upon the * * * incapacity of the principal."; or

(c) Any similar words showing the intent of the principal that the authority conferred shall be exercisable notwithstanding the principal's subsequent * * * incapacity * * *.

SECTION 5. Section 87-3-107, Mississippi Code of 1972, is amended as follows:

87-3-107. All acts done by an attorney in fact pursuant to a durable power of attorney during any period of * * * incapacity of the principal have the same effect and inure to the benefit of and bind the principal and his successors in interest as if the principal had capacity to act on his own behalf.

SECTION 6. Section 87-3-109, Mississippi Code of 1972, is amended as follows:

87-3-109. A principal may nominate, by a durable power of attorney, the conservator, guardian of his estate, or guardian of his person for consideration by the court if protective proceedings for the principal's person or estate are thereafter commenced. * * *

SECTION 7. Section 87-3-111, Mississippi Code of 1972, is amended as follows:

87-3-111. (1) The death of a principal who has executed a written power of attorney, durable or otherwise, does not revoke or terminate the agency as to the attorney in fact or other person, who, without actual knowledge of the death of the principal, acts in good faith under the power. Any action so taken, unless otherwise invalid or unenforceable, binds successors in interest of the principal.

(2) The disability or incapacity of a principal who has previously executed a written power of attorney that is not a durable power does not revoke or terminate the agency as to the attorney in fact or other person, who, without actual knowledge of the disability or incapacity of the principal, acts in good faith under the power. Any action so taken, unless otherwise invalid or unenforceable, binds the principal and his successors in interest.

(3) Unless a power of attorney states a time of termination, the authority of the attorney in fact is exercisable notwithstanding any lapse of time since execution of the power of attorney.

SECTION 8. This act shall take effect and be in force from and after July 1, 2011.