A durable power of attorney is a power of attorney by which a principal designates, in writing, another as his or her attorney in fact and the writing contains the words "This power of attorney shall not be affected by subsequent disability or incapacity of the principal, or lapse of time", or "This power of attorney shall become effective upon the disability or incapacity of the principal", or similar words showing the intent of the principal that the authority conferred shall be exercisable notwithstanding the principal's subsequent disability or incapacity and, unless it states a time of termination, notwithstanding the lapse of time since the execution of the instrument.
(Feb. 28, 1987, D.C. Law 6-204, § 2(a), 34 DCR 632.)
HISTORICAL AND STATUTORY NOTES
Prior Codifications
1981 Ed., § 21-2081.
Legislative History of Laws
For legislative history of D.C. Law 6-204, see Historical and Statutory Notes following § 21-2001.
Uniform Law
This section is based upon § 1 of the Uniform Durable Power of Attorney Act. See 8A Uniform Laws Annotated, Master Edition, or ULA Database on WESTLAW.
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 were not incapacitated.
(Feb. 28, 1987, D.C. Law 6-204, § 2(a), 34 DCR 632.)
HISTORICAL AND STATUTORY NOTES
Prior Codifications
1981 Ed., § 21-2082.
Legislative History of Laws
For legislative history of D.C. Law 6-204, see Historical and Statutory Notes following § 21-2001.
Uniform Law
This section is based upon § 2 of the Uniform Durable Power of Attorney Act. See 8A Uniform Laws Annotated, Master Edition, or ULA Database on WESTLAW.
(a) If, following execution of a durable power of attorney, a court of the principal's domicile appoints a conservator, guardian of the estate, or other fiduciary charged with the management of all of the principal's property or all of his or her property except specific 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 or she were not incapacitated and did not have a disability.
(b) A principal may nominate, by a durable power of attorney, the conservator, guardian of his or her estate, or guardian of his or her person for consideration by the court if protective proceedings for the principal's person or estate are later 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.
(Feb. 28, 1987, D.C. Law 6-204, § 2(a), 34 DCR 632; Apr. 24, 2007, D.C. Law 16-305, § 35(c)(4), 53 DCR 6198.)
HISTORICAL AND STATUTORY NOTES
Prior Codifications
1981 Ed., § 21-2083.
Effect of Amendments
D.C. Law 16-305, in subsec. (a), substituted "incapacitated and did not have a disability" for "disabled or incapacitated".
Legislative History of Laws
For legislative history of D.C. Law 6-204, see Historical and Statutory Notes following § 21-2001.
For Law 16-305, see notes following § 21-501.
Uniform Law
This section is based upon § 3 of the Uniform Durable Power of Attorney Act. See 8A Uniform Laws Annotated, Master Edition, or ULA Database on WESTLAW.
(a) The death of a principal who has executed a 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.
(b) The 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.
(Feb. 28, 1987, D.C. Law 6-204, § 2(a), 34 DCR 632.)
HISTORICAL AND STATUTORY NOTES
Prior Codifications
1981 Ed., § 21-2084.
Legislative History of Laws
For legislative history of D.C. Law 6-204, see Historical and Statutory Notes following § 21-2001.
Uniform Law
This section is based upon § 4 of the Uniform Durable Power of Attorney Act. See 8A Uniform Laws Annotated, Master Edition, or ULA Database on WESTLAW.
As to acts undertaken in good faith reliance thereon, an affidavit executed by the attorney in fact under a power of attorney, durable or otherwise, stating that he or she did not have, at the time of exercise of the power, actual knowledge of the termination of the power by revocation or of the principal's death or incapacity, is conclusive of the nonrevocation or nontermination of the power at that time. If the exercise of the power of attorney requires execution and delivery of any instrument that is recordable, the affidavit when authenticated for record is recordable in the same manner. This section does not affect any provision in a power of attorney for its termination by expiration of time or occurrence of an event other than express revocation or a change in the principal's capacity.
(Feb. 28, 1987, D.C. Law 6-204, § 2(a), 34 DCR 632.)
HISTORICAL AND STATUTORY NOTES
Prior Codifications
1981 Ed., § 21-2085.
Legislative History of Laws
For legislative history of D.C. Law 6-204, see Historical and Statutory Notes following § 21-2001.
Uniform Law
This section is based upon § 5 of the Uniform Durable Power of Attorney Act. See 8A Uniform Laws Annotated, Master Edition, or ULA Database on WESTLAW.
Refs & Annos
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Jurisdiction
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Laws
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Effective Date
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Statutory Citation
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Alabama
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1981, No. 81-98 p. 117
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3-4-1981
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Code 1975, § 26-1-2.
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Arizona
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1973, c. 75
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1-1-1974
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A.R.S. §§ 14-5501 to 14-5503.
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California
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1981, c. 511
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West's Ann.Cal.Probate Code, §§ 4124 to 4128, 4206, 4304, and 4305.
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|
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Colorado
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1973, H.B. 1039
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7-1-1974
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West's C.R.S.A. §§ 15-14-500.3 to 15-14-502.
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Delaware
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1982 [63 Del.Laws], c. 267
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12 Del.C. §§ 4901 to 4906.
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|
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District of Columbia
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1987, D.C. Law 6-204
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D.C. Official Code, 2001 Ed. §§ 21-2081 to 21-2085.
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|
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Florida
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1974, c. 74-245
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West's F.S.A. §§ 709.2101 to 709.2402.
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|
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Hawaii
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1989, c. 270
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6-8-1989
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HRS §§ 551D-1 to 551D-7.
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Idaho
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1982, c. 138
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I.C. §§ 15-5-501 to 15-5-507.
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|
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Kentucky
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1972, c. 168
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KRS 386.093.
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|
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Michigan
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1998, P.A. 386
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4-1-2000
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M.C.L.A. §§ 700.5501 to 700.5505.
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Minnesota
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1984, c. 603
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8-1-1984
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M.S.A. §§ 523.07 to 523.08.
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Mississippi
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1994, c. 336
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7-1-1994
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Code 1972, §§ 87-3-101 to 87-3-113.
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Missouri
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1989, H.B.No. 145
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8-28-1989
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V.A.M.S. §§ 404.700 to 404.735
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Montana
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1985, c. 283
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MCA 72-5-501, 72-5-502.
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|
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Nebraska
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1985, LB 292
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9-6-1985
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R.R.S.1943, §§ 30-2664 to 30-2672.
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New Hampshire
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2001, c. 257:1
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1-1-2002
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RSA 506:6.
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New Jersey
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2000, c. 109:1
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N.J.S.A. 46:2B-8.1 to 46:2B-8.14.
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|
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New Mexico
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1995, c. 210
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7-1-1995
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NMSA 1978, §§ 45-5-501 to 45-5-505.
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New York
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1996, c. 499
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1-1-1997
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McKinney's General Obligations Law §§ 5-1501, 5-1505, 5-1506.
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North Carolina
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1983, c. 626
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GS §§ 32A-8 to 32A-14.
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North Dakota
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1985, c. 370
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NDCC 30.1-30-01 to 30.1-30-06.
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|
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Oklahoma
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1988, c. 293
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11-1-1988
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58 Okl.St.Ann. §§ 1071 to 1077.
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Pennsylvania
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1982, P.L. 45, No. 26, § 9
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2-18-1982
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20 Pa.C.S.A. §§ 5604 to 5606.
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South Carolina
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1986, Act 539
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7-1-1987
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Code 1976, §§ 62-5-501 to 62-5-505.
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Tennessee
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1983, c. 299
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7-1-1983
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T.C.A. §§ 34-6-101 to 34-6-111.
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Texas
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1993, c. 49
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9-1-1993
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V.A.T.S. Probate Code §§ 481 to 506.
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Utah
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1975, c. 150
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7-1-1977
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U.C.A. 1953, 75-5-501 to 75-5-504.
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Vermont
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2001, No. 135
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6-13-2002
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14 V.S.A. § 3508.
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Virgin Islands
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1991, No. 5718
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9-23-1991
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15 V.I.C. §§ 1261 to 1267.
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Washington
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1985, c. 30
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West's RCWA 11.94.010 to 11.94.901.
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West Virginia
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1986, c. 165
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7-1-1986
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Code, §§ 39-4-1 to 39-4-7.
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[FN*] Date of approval.
