First of all, if you already have a SSFPOA, which you validly executed before January 1, 2014, yours is still effective and you are not required to get a new one. But, if you execute a SSFPOA after January 1, 2014, you need the revised version. In a nutshell, the changes to Minn. Stat. § 523.23 are essentially clarifications and safety precautions that better ensure the person giving the power knows what power they are giving and how it may be exercised. As many of you already know, a SSFPOA is an incredibly powerful document and not to be executed lightly without serious contemplation and thoughtful deliberation.
I outline below the changes to the Minnesota form:
- Acknowledgments (via signatures) by both the Principal (the one giving the power) and the Attorney-in-Fact (the one getting the power) that they have read and understand their respective notices, which include their roles (powers), responsibilities, and liabilities.
- If more than one Attorney-in-Fact is to act at the same time, the “x” must be clearly marked on that line.
- Power marked as (N) – all of the above specifically excludes health care decisions under a Health Care Directive described in Minn. Stat. § 145C. You still need a separate HCD assigning the same or different person to act as your agent.
- Power to make gifts to self as Attorney-in-Fact, like bullet point No. 2, must now be clearly marked with an “x” as either granting or denying that power to an Attorney-in-Fact.
- Two signatures from Attorney-in-Fact: one to sign acknowledgement of notice and one, as before in the old SSFPOA, as a specimen signature. (Notarization is not required of either signature).
- Powers Given By Principal – now more specifically described with direct, clarifying language about how the powers may be utilized.
- Duties of the Attorney-in-Fact – now specifically described and include liabilities and duties in two different places.
- Opportunity for and description of termination process of the SSFPOA is now described and delineated clearly, followed by an opportunity for the Principal’s initials as acknowledgment of understanding.
- Judicial Relief is clearly described. You can ask the Court to demand an accounting from your Attorney-in-Fact. The Judge may find that the Attorney-in-Fact failed to provide the accounting after a duty to provide it arose, in which case, the Principal is entitled to reasonable attorney fees and court costs.
So, if you already have a valid SSFPOA, I hope you can use this as a reminder of what it’s good for, how it works, and an opportunity to reflect on your choices. And, if you don’t have one, talk to your legal professional for guidance on whether a SSFPOA is appropriate for you.This blog is written by Bridget-Michaele Reischl, Attorney DECORO LAW OFFICE, PLLC www.decorolaw.com