MISSISSIPPI LEGISLATURE

2013 Regular Session

To: Judiciary A

By: Representative Blackmon

House Bill 468

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 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

          (c)  That the power of attorney is:

              (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 eighteen (18) 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.  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 * * * words following statements:

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

(b)  "This power of attorney shall become effective upon the * * * disability or 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 * * * disability or incapacity * * *, and, unless it states a time of termination, notwithstanding the lapse of time since the execution of the instrument.

     SECTION 3.  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 * * * disability or incapacity of the principal have the same effect and inure to the benefit of and bind the principal and his successors in interest as if the principal had capacity to act on his behalf * * *were competent and not disabled.  Unless the instrument states a time of termination, the power is exercisable notwithstanding the lapse of time since the execution of the instrument.

     SECTION 4.  Section 87-3-109, Mississippi Code of 1972, is amended as follows:

     87-3-109.  * * * (1)  If, following execution of a durable power of attorney, a court of the principal's domicile appoints a conservator, guardian of the estate, or other fiduciary charged with the management of all of the principal's property or all of his property except specified exclusions, the attorney in fact is accountable to the fiduciary as well as to the principal.  The fiduciary has the same power to revoke or amend the power of attorney that the principal would have had if he were not disabled or incapacitated.

 * * *(2) 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.  * * * The court shall make its appointment in accordance with the principal's most recent nomination in a durable power of attorney except for good cause or disqualification.

     SECTION 5.  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 6.  This act shall take effect and be in force from and after July 1, 2013.

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