CHAPTER 58
HOUSE BILL No. 2034
An Act concerning the Kansas power of attorney act; amending K.S.A.
2002 Supp. 58a-
602 and repealing the existing section; also repealing K.S.A.
58-601, 58-602, 58-610, 58-
611, 58-612, 58-613, 58-614, 58-615, 58-616 and
58-617.
Be it enacted by the Legislature of the State of Kansas:
New Section 1. Sections 1 through
16, and amendments thereto,
shall be known and may be cited as the Kansas power of attorney
act.
New Sec. 2. As used in the Kansas
power of attorney act:
(a) ``Attorney in fact'' means an
individual, corporation or other legal
entity appointed to act as agent of a principal in a written power
of at-
torney.
(b) ``Court'' means the district
court.
(c) ``Disabled'' means a person who is
wholly or partially disabled as
defined in K.S.A. 77-201, and amendments thereto, or a similar law
of
the place having jurisdiction of the person whose capacity is in
question.
(d) ``Durable power of attorney'' means a
written power of attorney
in which the authority of the attorney in fact does not terminate
in the
event the principal becomes disabled or in the event of later
uncertainty
as to whether the principal is dead or alive and which complies
with
subsection (a) of section 3, and amendments thereto, or is durable
under
the laws of any of the following places:
(1) The law of the place where
executed;
(2) the law of the place of the residence
of the principal when exe-
cuted; or
(3) the law of a place designated in the
written power of attorney if
that place has a reasonable relationship to the purpose of the
instrument.
(e) ``Legal representative'' means a
decedent's personal representa-
tive, a guardian or a conservator.
(f) ``Nondurable power of attorney''
means a written power of attor-
ney which does not meet the requirements of a durable power of
attorney.
(g) ``Person'' means an adult individual,
corporation or other legal
entity.
(h) ``Personal representative'' means a
legal representative as defined
in K.S.A. 59-102, and amendments thereto.
(i) ``Power of attorney'' means a written
power of attorney, either
durable or nondurable.
(j) ``Principal's family'' means the
principal's parent, grandparent, un-
cle, aunt, brother, sister, son, daughter, grandson, granddaughter
and
their descendants, whether of the whole blood or the half blood, or
by
adoption, and the principal's spouse, stepparent and stepchild.
(k) ``Third person'' means any
individual, corporation or legal entity
that acts on a request from, contracts with, relies on or otherwise
deals
with an attorney in fact pursuant to authority granted by a
principal in a
power of attorney and includes a partnership, either general or
limited,
governmental agency, financial institution, issuer of securities,
transfer
agent, securities or commodities broker, real estate broker, title
insurance
company, insurance company, benefit plan, legal representative,
custo-
dian or trustee.
New Sec. 3. (a) The authority
granted by a principal to an attorney
in fact in a written power of attorney is not terminated in the
event the
principal becomes wholly or partially disabled or in the event of
later
uncertainty as to whether the principal is dead or alive if:
(1) The power of attorney is denominated
a ``durable power of attor-
ney;''
(2) the power of attorney includes a
provision that states in substance
one of the following:
(A) ``This is a durable power of attorney
and the authority of my
attorney in fact shall not terminate if I become disabled or in the
event
of later uncertainty as to whether I am dead or alive''; or
(B) ``This is a durable power of attorney
and the authority of my
attorney in fact, when effective, shall not terminate or be void or
voidable
if I am or become disabled or in the event of later uncertainty as
to
whether I am dead or alive''; and
(3) the power of attorney is signed by
the principal, and dated and
acknowledged in the manner prescribed by K.S.A. 53-501 et
seq., and
amendments thereto.
(b) All acts done by an attorney in fact
pursuant to a durable power
of attorney shall inure to the benefit of and bind the principal
and the
principal's successors in interest, notwithstanding any disability
of the
principal.
(c) (1) A power of attorney does
not have to be recorded to be valid
and binding between the principal and attorney in fact or between
the
principal and third persons.
(2) A power of attorney may be recorded
in the same manner as a
conveyance of land is recorded. A certified copy of a recorded
power of
attorney may be admitted into evidence.
(3) If a power of attorney is recorded
any revocation of that power
of attorney must be recorded in the same manner for the revocation
to
be effective. If a power of attorney is not recorded it may be
revoked by
a recorded revocation or in any other appropriate manner.
(4) If a power of attorney requires
notice of revocation be given to
named persons, those persons may continue to rely on the authority
set
forth in the power of attorney until such notice is received.
(d) A person who is appointed an attorney
in fact under a durable
power of attorney has no duty to exercise the authority conferred
in the
power of attorney, unless the attorney in fact has agreed expressly
in
writing to act for the principal in such circumstances. An
agreement to
act on behalf of the principal is enforceable against the attorney
in fact
as a fiduciary without regard to whether there is any consideration
to
support a contractual obligation to do so. Acting for the principal
in one
or more transactions does not obligate an attorney in fact to act
for the
principal in subsequent transactions.
(e) The grant of power or authority
conferred by a power of attorney
in which any principal shall vest any power or authority in an
attorney in
fact, if such writing expressly so provides, shall be effective
only upon:
(1) A specified future date; (2) the occurrence of a specified
future event;
or (3) the existence of a specified condition which may occur in
the future.
In the absence of actual knowledge to the contrary, any person to
whom
such writing is presented shall be entitled to rely on an
affidavit, executed
by the attorney in fact, setting forth that such event has occurred
or
condition exists.
New Sec. 4. (a) A principal may
appoint more than one attorney in
fact in one or more powers of attorney and may provide that the
authority
conferred on two or more attorneys in fact shall or may be
exercised either
jointly or severally or in a manner, with such priority and with
respect to
such subjects as is provided in the power of attorney. In the
absence of
specification in a power of attorney, the attorneys in fact must
act jointly.
(b) The designation of a person not
qualified to act as an attorney in
fact for a principal under a power of attorney subjects the person
to
removal as attorney in fact but does not affect the immunities of
third
persons nor relieve the unqualified person of any duties or
responsibilities
to the principal or the principal's successors.
New Sec. 5. (a) A principal
may delegate to an attorney in fact in
a power of attorney general powers to act in a fiduciary capacity
on the
principal's behalf with respect to all lawful subjects and purposes
or with
respect to one or more express subjects or purposes. A power of
attorney
with general powers may be durable or nondurable.
(b) If the power of attorney states that
general powers are granted to
the attorney in fact and further states in substance that it grants
power
to the attorney in fact to act with respect to all lawful subjects
and pur-
poses or that it grants general powers for general purposes or does
not
by its terms limit the power to the specific subject or purposes
set out in
the instrument, then the authority of the attorney in fact acting
under
the power of attorney shall extend to and include each and every
action
or power which an adult who is nondisabled may carry out through
an
agent specifically authorized in the premises, with respect to any
and all
matters whatsoever, except as provided in subsection (f) and (g).
When
a power of attorney grants general powers to an attorney in fact to
act
with respect to all lawful subjects and purposes, the enumeration
of one
or more specific subjects or purposes does not limit the general
authority
granted by that power of attorney, unless otherwise provided in the
power
of attorney.
(c) If the power of attorney states that
general powers are granted to
an attorney in fact with respect to one or more express subjects or
pur-
poses for which general powers are conferred, then the authority of
the
attorney in fact acting under the power of attorney shall extend to
and
include each and every action or power, but only with respect to
the
specific subjects or purposes expressed in the power of attorney
that an
adult who is nondisabled may carry out through an agent
specifically au-
thorized in the premises, with respect to any and all matters
whatsoever,
except as provided in subsection (f) and (g).
(d) Except as provided in subsections (f)
and (g), an attorney in fact
with general powers has, with respect to the subjects or purposes
for
which the powers are conferred, all rights, power and authority to
act for
the principal that the principal would have with respect to the
principal's
own person or property, including property owned jointly or by the
en-
tireties with another or others, as a nondisabled adult. Without
limiting
the foregoing an attorney in fact with general powers has, with
respect to
the subject or purposes of the power, complete discretion to make
a
decision for the principal, to act or not act, to consent or not
consent to,
or withdraw consent for, any act, and to execute and deliver or
accept
any deed, bill of sale, bill of lading, assignment, contract, note,
security
instrument, consent, receipt, release, proof of claim, petition or
other
pleading, tax document, notice, application, acknowledgment or
other
document necessary or convenient to implement or confirm any
act,
transaction or decision. An attorney in fact with general powers,
whether
power to act with respect to all lawful subjects and purposes, or
only with
respect to one or more express subjects or purposes, shall have the
power,
unless specifically denied by the terms of the power of attorney,
to make,
execute and deliver to or for the benefit of or at the request of a
third
person, who is requested to rely upon an action of the attorney in
fact,
an agreement indemnifying and holding harmless any third person
or
persons from any liability, claims or expenses, including legal
expenses,
incurred by any such third person by reason of acting or refraining
from
acting pursuant to the request of the attorney in fact. Such
indemnity
agreement shall be binding upon the principal who has executed
such
power of attorney and upon the principal's successor or successors
in
interest. No such indemnity agreement shall protect any third
person
from any liability, claims or expenses incurred by reason of the
fact that,
and to the extent that, the third person has honored the power of
attorney
for actions outside the scope of authority granted by the power of
attor-
ney. In addition, the attorney in fact has complete discretion to
employ
and compensate real estate agents, brokers, attorneys, accountants
and
subagents of all types to represent and act for the principal in
any and all
matters, including tax matters involving the United States
government or
any other government or taxing entity, including, but not limited
to, the
execution of supplemental or additional powers of attorney in the
name
of the principal in form that may be required or preferred by any
such
taxing entity or other third person, and to deal with any or all
third persons
in the name of the principal without limitation. No such
supplemental or
additional power of attorney shall broaden the scope of authority
granted
to the attorney in fact in the original power of attorney executed
by the
principal.
(e) An attorney in fact, who is granted
general powers for all subjects
and purposes or with respect to any express subjects or purposes,
shall
exercise the powers conferred according to the principal's
instructions, in
the principal's best interest, in good faith, prudently and in
accordance
with sections 6 and 7, and amendments thereto.
(f) Any power of attorney, whether or not
it grants general powers
for all subjects and purposes or with respect to express subjects
or pur-
poses, shall be construed to grant power or authority to an
attorney in
fact to carry out any of the actions described in this subsection
only if the
actions are expressly enumerated and authorized in the power of
attorney.
Any power of attorney may grant power or authority to an attorney
in fact
to carry out any of the following actions if the actions are
expressly au-
thorized in the power of attorney:
(1) To execute, amend or revoke any trust
agreement;
(2) to fund with the principal's assets
any trust not created by the
principal;
(3) to make or revoke a gift of the
principal's property in trust or
otherwise;
(4) to disclaim a gift or devise of
property to or for the benefit of the
principal;
(5) to create or change survivorship
interests in the principal's prop-
erty or in property in which the principal may have an interest.
The in-
clusion of the authority set out in this paragraph shall not be
necessary
in order to grant to an attorney in fact acting under a power of
attorney
granting general powers with respect to all lawful subjects and
purposes
the authority to withdraw funds or other property from any account,
con-
tract or other similar arrangement held in the names of the
principal and
one or more other persons with any financial institution, brokerage
com-
pany or other depository to the same extent that the principal
would be
authorized to do if the principal were present, not disabled and
seeking
to act in the principal's own behalf;
(6) to designate or change the
designation of beneficiaries to receive
any property, benefit or contract right on the principal's
death;
(7) to give or withhold consent to an
autopsy or postmortem exami-
nation;
(8) to make a gift of, or decline to make
a gift of, the principal's body
parts under the uniform anatomical gift act, K.S.A. 65-3209 through
65-
3217, and amendments thereto;
(9) to nominate a guardian or conservator
for the principal; and if so
stated in the power of attorney, the attorney in fact may nominate
such
attorney in fact's self as such;
(10) to alienate the homestead without
the joint consent of husband
and wife when that relationship exists, if the power of attorney
specifically:
Gives the attorney in fact the power to sell, transfer and convey
the home-
stead in question; gives the legal description and street address
of the
property; and states that by the execution of the power of attorney
it is
the intention of the parties that the act shall constitute the
joint consent
required by Article 15, Section 9 of the Kansas Constitution and
the
power of attorney is executed by both the husband and wife in the
same
instrument;
(11) to designate one or more substitute
or successor or additional
attorneys in fact; or
(12) to delegate any or all powers
granted in a power of attorney
pursuant to subsection (a) of section 11, and amendments
thereto.
(g) No power of attorney, whether or not
it delegates general powers,
may delegate or grant power or authority to an attorney in fact to
do or
carry out any of the following actions for the principal:
(1) To make, publish, declare, amend or
revoke a will for the prin-
cipal;
(2) to make, execute, modify or revoke a
declaration under K.S.A. 65-
28,101 et seq., and amendments thereto, for the principal or
to make,
execute, modify or revoke a do not resuscitate directive under
K.S.A. 65-
4941, and amendments thereto, for the principal or to make,
execute,
modify or revoke a durable power of attorney for health care
decisions
pursuant to K.S.A. 58-625, et seq., and amendments thereto,
for the prin-
cipal;
(3) to require the principal, against the
principal's will, to take any
action or to refrain from taking any action; or
(4) to carry out any actions specifically
forbidden by the principal
while not under any disability or incapacity.
(h) A third person may freely rely on,
contract and deal with an at-
torney in fact delegated general powers with respect to the
subjects and
purposes encompassed or expressed in the power of attorney
without
regard to whether the power of attorney expressly identifies the
specific
property, account, security, storage facility or matter as being
within the
scope of a subject or purpose contained in the power of attorney,
and
without regard to whether the power of attorney expressly
authorizes the
specific act, transaction or decision by the attorney in fact.
(i) It is the policy of this state that
an attorney in fact acting pursuant
to the provisions of a power of attorney granting general powers
shall be
accorded the same rights and privileges with respect to the
personal wel-
fare, property and business interests of the principal, and if the
power of
attorney enumerate some express subjects or purposes, with respect
to
those subjects or purposes, as if the principal was personally
present and
acting or seeking to act; and any provision of law and any
purported
waiver, consent or agreement executed or granted by the principal
to the
contrary shall be void and unenforceable.
(j) Sections 1 through 16, and amendments
thereto, shall not be con-
strued to preclude any person or business enterprise from providing
in a
contract with the principal as to the procedure that thereafter
must be
followed by the principal or the principal's attorney in fact in
order to
give a valid notice to the person or business enterprise of any
modification
or termination of the appointment of an attorney in fact by the
principal.
Any such contractual provision for notice shall be valid and
binding on
the principal and the principal's successors so long as such
provision is
reasonably capable of being carried out.
New Sec. 6. (a) An attorney in
fact acting for the principal under
a power of attorney shall clearly indicate the attorney in fact's
capacity
and shall keep the principal's property and accounts separate and
distinct
from all other property and accounts in a manner to identify the
property
and accounts clearly as belonging to the principal.
(b) An attorney in fact holding property
for a principal complies with
subsection (a) if the property is held in the name of the
principal, in the
name of the attorney in fact as attorney in fact for the principal
or in the
name of the attorney in fact as personal custodian for the
principal under
the uniform custodial trust law or similar law of any state.
New Sec. 7. (a) An attorney in fact
who elects to act under a power
of attorney is under a duty to act in the interest of the principal
and to
avoid conflicts of interest that impair the ability of the attorney
in fact so
to act. A person who is appointed an attorney in fact under a power
of
attorney who undertakes to exercise the authority conferred in the
power
of attorney, has a fiduciary obligation to exercise the powers
conferred in
the best interests of the principal, and to avoid self-dealing and
conflicts
of interest, as in the case of a trustee with respect to the
trustee's bene-
ficiary or beneficiaries. In the absence of explicit authorization,
the at-
torney in fact shall exercise a high degree of care in maintaining,
without
modification, any estate plan which the principal may have in
place, in-
cluding, but not limited to, arrangements made by the principal for
dis-
position of assets at death through beneficiary designations,
ownership by
joint tenancy or tenancy by the entirety, trust arrangements or by
will or
codicil. Unless otherwise provided in the power of attorney or in a
sep-
arate agreement between the principal and attorney in fact, an
attorney
in fact who elects to act shall exercise the authority granted in a
power
of attorney with that degree of care that would be observed by a
prudent
person dealing with the property and conducting the affairs of
another,
except that all investments made on or after July 1, 2003, shall be
in
accordance with the provisions of the Kansas uniform prudent
investor
act, K.S.A. 58-24a01 et seq., and amendments thereto. If the
attorney in
fact has special skills or was appointed attorney in fact on the
basis of
representations of special skills or expertise, the attorney in
fact has a
duty to use those skills in the principal's behalf.
(b) On matters undertaken or to be
undertaken in the principal's
behalf and to the extent reasonably possible under the
circumstances, an
attorney in fact has a duty to keep in regular contact with the
principal,
to communicate with the principal and to obtain and follow the
instruc-
tions of the principal.
(c) 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 the principal's 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 durable
power
of attorney that the principal would have had if the principal were
not an
adult with an impairment in need of a guardian or conservator or
both as
defined by subsection (a) of K.S.A. 59-3051, and amendments
thereto.
(d) A principal may nominate by a power
of attorney, a guardian or
conservator, or both, for consideration by the court. If a petition
to ap-
point a guardian or conservator, or both, is filed, the court shall
make the
appointment in accordance with the principal's most recent
nomination
in the power of attorney, so long as the individual nominated is a
fit and
proper person.
(e) An attorney in fact shall exercise
authority granted by the principal
in accordance with the instrument setting forth the power of
attorney,
any modification made therein by the principal or the principal's
legal
representative or a court, and the oral and written instructions of
the
principal, or the written instructions of the principal's legal
representative
or a court.
(f) An attorney in fact may be instructed
in a power of attorney that
the authority granted shall not be exercised until, or shall
terminate on,
the happening of a future event, condition or contingency, as
determined
in a manner prescribed in the instrument.
(g) On the death of the principal, the
attorney in fact shall follow the
instructions of the court, if any, having jurisdiction over the
estate of the
principal, or any part thereof, and shall communicate with and be
ac-
countable to the principal's personal representative, or if none,
the prin-
cipal's successors. The attorney in fact shall promptly deliver to
and put
in the possession and control of the principal's personal
representative or
successors, any property of the principal and copies of any records
of the
attorney in fact relating to transactions undertaken in the
principal's be-
half that are deemed by the personal representative or the court to
be
necessary or helpful in the administration of the decedent's
estate.
(h) If an attorney in fact has a property
or contract interest in the
subject of the power of attorney or the authority of the attorney
in fact
is otherwise coupled with an interest in a person other than the
principal,
this section does not impose any duties on the attorney in fact
that would
conflict or be inconsistent with that interest.
New Sec. 8. (a) As between the
principal and attorney in fact or
successor attorney in fact, and any agents appointed by either of
them,
unless the power of attorney is coupled with an interest, the
authority
granted in a power of attorney shall be modified or terminated as
follows:
(1) On the date shown in the power of
attorney and in accordance
with the express provisions of the power of attorney;
(2) when the principal, orally or in
writing, or the principal's legal
representative in writing informs the attorney in fact or successor
that the
power of attorney is modified or terminated, or when and under
what
circumstances it is modified or terminated; or
(3) when a written notice of modification
or termination of the power
of attorney is filed by the principal or the principal's legal
representative
for record in the office of the register of deeds in the county of
the
principal's residence or, if the principal is a nonresident of the
state, in
the county of the residence of the attorney in fact last known to
the
principal, or in the county in which is located any property
specifically
referred to in the power of attorney.
(b) As between the principal and attorney
in fact or successor attor-
ney in fact, and any agents appointed by either of them, unless the
power
of attorney is coupled with an interest, the authority granted in a
power
of attorney shall be terminated as follows:
(1) On the death of the principal, except
that if the power of attorney
grants authority under subsection (f)(7) or (f)(8) of section 5,
and amend-
ments thereto, the power of attorney and the authority of the
attorney in
fact shall continue for the limited purpose of carrying out the
authority
granted under either or both of such subsections for a reasonable
length
of time after the death of the principal;
(2) when the attorney in fact under a
power of attorney is not qual-
ified to act for the principal; or
(3) on the filing of any action for
annulment, separate maintenance
or divorce of the principal and the principal's attorney in fact
who were
married to each other at or subsequent to the time the power of
attorney
was created, unless the power of attorney provides otherwise.
(c) The authority of an attorney in fact,
under a power of attorney
that is nondurable, is suspended during any period that the
principal is
disabled to the extent that the principal is unable to receive or
evaluate
information or to communicate decisions with respect to the subject
of
the power of attorney. An attorney in fact exercising authority
under a
power of attorney that is nondurable shall not act in the
principal's behalf
during any period that the attorney in fact knows the principal is
so dis-
abled.
(d) Whenever any of the events described
in subsection (a) operate
merely to terminate the authority of the particular person
designated as
the attorney in fact, rather than terminating the power of
attorney, if the
power of attorney designates a successor or contingent attorney in
fact or
prescribes a procedure whereby a successor or contingent attorney
in fact
may be designated, then the authority provided in the power of
attorney
shall extend to and vest in the successor or contingent attorney in
fact in
lieu of the attorney in fact whose power and authority was
terminated
under any of the circumstances referred to in subsection (a).
(e) As between the principal and attorney
in fact or successor, acts
and transactions of the attorney in fact or successor undertaken in
good
faith, in accordance with section 7, and amendments thereto, and
without
actual knowledge of the death of the principal or without actual
knowl-
edge, or constructive knowledge pursuant to subsection (a)(3), that
the
authority granted in the power of attorney has been suspended,
modified
or terminated, relieves the attorney in fact or successor from
liability to
the principal and the principal's successors in interest.
(f) This section does not prohibit the
principal, acting individually,
and the person designated as the attorney in fact from entering
into a
written agreement that sets forth their duties and liabilities as
between
themselves and their successors, and which expands or limits the
appli-
cation of this act, with the exception of those acts enumerated in
subsec-
tion (g) of section 5, and amendments thereto.
(g) As between the principal and any
attorney in fact or successor, if
the attorney in fact or successor undertakes to act, and if in
respect to
such act, the attorney in fact or successor acts in bad faith,
fraudulently
or otherwise dishonestly, or if the attorney in fact or successor
intention-
ally acts after receiving actual notice that the power of attorney
has been
revoked or terminated, and thereby causes damage or loss to the
principal
or to the principal's successors in interest, such attorney in fact
or suc-
cessor shall be liable to the principal or to the principal's
successors in
interest, or both, for such damages, together with reasonable
attorney
fees, and punitive damages as allowed by law.
New Sec. 9. (a) A third person,
who is acting in good faith, without
liability to the principal or the principal's successors in
interest, may rely
and act on any power of attorney executed by the principal. A third
per-
son, with respect to the subjects and purposes encompassed by or
sepa-
rately expressed in the power of attorney, may rely and act on the
instruc-
tions of or otherwise contract and deal with the principal's
attorney in
fact or successor attorney in fact and, in the absence of actual
knowledge,
as defined in subsection (c), is not responsible for determining
and has
no duty to inquire as to any of the following:
(1) The authenticity of a copy of a power
of attorney furnished by
the principal's attorney in fact or successor;
(2) the validity of the designation of
the attorney in fact or successor;
(3) whether the attorney in fact or
successor is qualified to act as an
attorney in fact for the principal;
(4) the propriety of any act of the
attorney in fact or successor in the
principal's behalf, including, but not limited to, whether or not
an act
taken or proposed to be taken by the attorney in fact, constitutes
a breach
of any duty or obligation owed to the principal, including, but not
limited
to, the obligation to the principal not to modify or alter the
principal's
estate plan or other provisions for distributions of assets at
death, as pro-
vided in subsection (a) of section 7, and amendments thereto;
(5) whether any future event, condition
or contingency making ef-
fective or terminating the authority conferred in a power of
attorney has
occurred;
(6) whether the principal is disabled or
has been adjudicated disa-
bled;
(7) whether the principal, the
principal's legal representative or a
court has given the attorney in fact any instructions or the
content of any
instructions, or whether the attorney in fact is following any
instructions
received;
(8) whether the authority granted in a
power of attorney has been
modified by the principal, a legal representative of the principal
or a court;
(9) whether the authority of the attorney
in fact has been terminated,
except by an express provision in the power of attorney showing the
date
on which the power of attorney terminates;
(10) whether the power of attorney, or
any modification or termina-
tion thereof, has been recorded, except as to transactions
affecting real
estate;
(11) whether the principal had legal
capacity to execute the power of
attorney at the time the power of attorney was executed;
(12) whether, at the time the principal
executed the power of attor-
ney, the principal was subjected to duress, undue influence or
fraud, or
the power of attorney was for any other reason void or voidable, if
the
power of attorney appears to be regular on its face;
(13) whether the principal is alive;
(14) whether the principal and attorney
in fact were married at or
subsequent to the time the power of attorney was created and
whether
an action for annulment, separate maintenance or divorce has been
filed
by either party; or
(15) the truth or validity of any facts
or statements made in an affi-
davit of the attorney in fact or successor with regard to the
ability or
capacity of the principal, the authority of the attorney in fact or
successor
under the power of attorney, the happening of any event or events
vesting
authority in any successor or contingent attorney in fact, the
identity or
authority of a person designated in the power of attorney to
appoint a
substitute or successor attorney in fact or that the principal is
alive.
(b) A third person, in good faith and
without liability to the principal
or the principal's successors in interest, even with knowledge that
the
principal is disabled, may rely and act on the instructions of or
otherwise
contract and deal with the principal's attorney in fact or
successor attorney
in fact acting pursuant to authority granted in a durable power of
attorney.
(c) A third person that conducts
activities through employees shall
not be charged under this act with actual knowledge of any fact
relating
to a power of attorney, nor of a change in the authority of an
attorney in
fact, unless the information is received at a home office or a
place where
there is an employee with responsibility to act on the information,
and
the employee has a reasonable time in which to act on the
information
using the procedures and facilities that are available to the third
person
in the regular course of its operations.
(d) A third person, when being requested
to engage in transactions
with a principal through the principal's attorney in fact, may: (1)
Require
the attorney in fact to provide specimens of the attorney in fact's
signature
and any other information reasonably necessary or appropriate in
order
to facilitate the actions of the third person in transacting
business through
the attorney in fact; (2) require the attorney in fact to indemnify
the third
person against forgery of the power of attorney, by bond or
otherwise. If
the power of attorney is durable as defined in subsection (a) of
section 3,
and amendments thereto, and if either the principal or the attorney
in
fact seeking to act is and has been a resident of this state for at
least two
years, and if the attorney in fact has executed in the name of the
principal
and delivered to the third person an indemnity agreement
reasonably
satisfactory in form to such third person, no such bond shall be
required;
and (3) prescribe the place and manner in which the third person
will be
given any notice respecting the principal's power of attorney and
the time
in which the third person has to comply with any notice.
New Sec. 10. (a) As between the
principal and third persons, the
authority granted in a power of attorney shall terminate on the
date of
termination, if any, set out in the power of attorney or on the
date when
the third person acquires actual knowledge of the death of the
principal
or that the authority granted in the power of attorney has been
suspended,
modified or terminated.
(b) As between the principal and third
persons, the acts and trans-
actions of an attorney in fact are binding on the principal and the
prin-
cipal's successors in interest in any situation in which a third
person is
entitled to rely under section 9, and amendments thereto.
(c) This section shall not prohibit the
principal, acting individually,
and a third person from entering into a written agreement that sets
forth
their duties and liabilities as between themselves and their
successors,
and which expands or limits the application of this act, except
that no
agreement shall limit or restrict the right of the principal to act
with
respect to the third person through an attorney in fact appointed
in a
power of attorney.
New Sec. 11. (a) If the principal
has expressly authorized such del-
egation pursuant to subsection (f) of section 5, and amendments
thereto,
an attorney in fact or successor from time to time may revocably
delegate
any or all of the powers granted in a durable power of attorney to
one or
more qualified persons, subject to any directions or limitations of
the
principal expressed in the durable power of attorney, but the
attorney in
fact making the delegation shall remain responsible to the
principal for
the exercise or nonexercise of the powers delegated.
(b) The principal in a durable power of
attorney may revocably: (1)
Name one or more qualified persons as successor attorneys in fact
to
exercise the authority granted in the durable power of attorney in
the
order named in the event a prior named attorney in fact resigns,
dies,
becomes disabled, is not qualified to act or refuses to act; and
(2) grant
a power to another person, designated by name, by office or by
function,
including the initial and any successor attorneys in fact, whereby
there
may be revocably named at any time one or more successor attorneys
in
fact.
(c) A delegated or successor attorney in
fact need not indicate such
attorney in fact's capacity as a delegated or successor attorney in
fact.
(d) If there is no attorney in fact or
successor designated in a durable
power of attorney who is willing, able and available to act, the
court in
lieu of appointing a conservator may appoint any adult person or
financial
institution as successor attorney in fact to act pursuant to the
disabled
principal's durable power of attorney, with or without bond and
with or
without court supervision, upon such terms and conditions as the
court
may require. None of the actions described in this subsection shall
be
taken by the court until after hearing upon reasonable notice to
all persons
identified in a verified statement supplied by the petitioner who
is re-
questing such action identifying the immediate relatives of the
principal
and any other persons known to the petitioner to be interested in
the
welfare of the principal. Except that in the event of an emergency
as
determined by the court, the court, without notice, may enter such
tem-
porary order as seems proper to the court, but no such temporary
order
shall be effective for more than 30 days unless extended by the
court after
hearing on reasonable notice to the persons identified as herein
provided.
New Sec. 12. Subject to the
provisions of the power of attorney and
any separate agreement, an attorney in fact is entitled to
reasonable com-
pensation for services rendered to the principal as attorney in
fact and
reimbursement for reasonable expenses incurred as a result of
acting as
attorney in fact for the principal.
New Sec. 13. (a) The principal
may petition the court for an ac-
counting by the principal's attorney in fact or the legal
representative of
the attorney in fact. If the principal is disabled or deceased, a
petition for
accounting may be filed by the principal's legal representative, an
adult
member of the principal's family or any person interested in the
welfare
of the principal.
(b) Any requirement for an accounting may
be waived or an account-
ing may be approved by the court without hearing, if the accounting
is
waived or approved by a principal who is not disabled, or by a
principal
whose legal capacity has been restored, or by all creditors and
distributees
of a deceased principal's estate whose claims or distributions
theretofore
have not been satisfied in full. The approval or waiver shall be in
writing,
signed by the affected persons and filed with the court.
(c) For the purposes of subsection (b), a
legal representative or a
person providing services to the principal's estate shall not be
considered
a creditor of the principal's estate. No express approval or waiver
shall be
required from the legal representative of a disabled principal if
the prin-
cipal's legal capacity has been restored, or from the personal
represen-
tative of a deceased principal's estate, or from any other person
entitled
to compensation or expense for services rendered to a disabled or
de-
ceased principal's estate, unless the principal or the principal's
estate is
unable to pay in full the compensation and expense to which the
person
rendering the services may be entitled.
(d) The principal, the principal's
attorney in fact, an adult member
of the principal's family or any person interested in the welfare
of the
principal may petition the district court in the county where the
principal
is then residing to determine and declare whether a principal, who
has
executed a power of attorney, is a disabled person.
(e) If the principal is a disabled
person, on petition of the principal's
legal representative, an adult member of the principal's family or
any
interested person, including a person interested in the welfare of
the
principal, for good cause shown, the court may:
(1) Order the attorney in fact to
exercise or refrain from exercising
authority in a durable power of attorney in a particular manner or
for a
particular purpose;
(2) modify the authority of an attorney
in fact under a durable power
of attorney;
(3) declare suspended a power of attorney
that is nondurable;
(4) terminate a durable power of
attorney;
(5) remove the attorney in fact under a
durable power of attorney;
(6) confirm the authority of an attorney
in fact or a successor attorney
in fact to act under a durable power of attorney; and
(7) issue such other orders as the court
finds will be in the best in-
terest of the disabled principal, including appointment of a
conservator
for the principal pursuant to K.S.A. 59-3050, et seq., and
amendments
thereto.
(f) In addition to any other remedies
available under law, if after
notice and hearing, the court determines that there has been a
showing
that the principal is a disabled person and that the attorney in
fact has
breached such attorney in fact's fiduciary duty to the principal or
that
there is a reasonable likelihood that such attorney in fact may do
so in
the immediate future, the court, in its discretion, may issue an
order that
some or all of the authority granted by the durable power of
attorney be
suspended or modified, and that a different attorney in fact be
authorized
to exercise some or all of the powers granted by the durable power
of
attorney. Such attorney in fact may be designated by the court. The
court
may require any person petitioning for any such order to file a
bond in
such amount and with such sureties as required by the court to
indemnify
either the attorney in fact who has been acting on behalf of the
principal
or the principal and the principal's successors in interest for the
expenses,
including attorney fees, incurred by any such persons with respect
to such
proceeding. The court, after hearing, may allow payment or enter
judg-
ment for any such amount in the manner as provided by subsection
(f)
of section 15, and amendments thereto. None of the actions
described in
this subsection shall be taken by the court until after hearing
upon rea-
sonable notice to all persons identified in a verified statement
supplied
by the petitioner who is requesting such action identifying the
immediate
relatives of the principal and any other persons known to the
petitioner
to be interested in the welfare of the principal. Except that in
the event
of an emergency as determined by the court, the court, without
notice,
may enter such temporary order as seems proper to the court, but
no
such temporary order shall be effective for more than 30 days
unless
extended by the court after hearing on reasonable notice to the
persons
identified as herein provided.
(g) If a power of attorney is suspended
or terminated by the court or
the attorney in fact is removed by the court, the court may require
an
accounting from the attorney in fact and order delivery of any
property
belonging to the principal and copies of any necessary records of
the
attorney in fact concerning the principal's property and affairs to
a suc-
cessor attorney in fact or the principal's legal
representative.
(h) In a proceeding under this act or in
any other proceeding, or upon
petition of an attorney in fact or successor, the court may:
(1) Require or permit an attorney in fact
under a power of attorney
to account;
(2) authorize the attorney in fact under
a power of attorney to enter
into any transaction, or approve, ratify, confirm and validate any
trans-
action entered into by the attorney in fact that the court finds
is, was or
will be beneficial to the principal and which the court has power
to au-
thorize for a conservator pursuant to K.S.A. 59-3050 et
seq., and amend-
ments thereto; and
(3) relieve the attorney in fact of any
obligation to exercise authority
for a disabled principal under a durable power of attorney.
(i) Unless previously barred by
adjudication, consent or limitation,
any cause of action against an attorney in fact or successor for
breach of
duty to the principal shall be barred as to any principal who has
received
an account or other statement fully disclosing the matter unless a
pro-
ceeding to assert the cause of action is commenced within two years
after
receipt of the account or statement by the attorney in fact or, if
the
principal is a disabled person, by a guardian or conservator of the
disabled
person's estate. If a disabled person has no guardian or
conservator of
the disabled person's estate at the time an account or statement is
pre-
sented, then the cause of action shall not be barred until one year
after
the removal of the principal's disability or incapacity, one year
after the
appointment of a conservator for the principal or one year after
the death
of the principal. The cause of action thus barred does not include
any
action to recover from an attorney in fact or successor for fraud,
misrep-
resentation or concealment related to the settlement of any
transaction
involving the agency relationship of the attorney in fact with the
principal.
New Sec. 14. (a) This act
applies to the acts and transaction in this
state of attorneys in fact under powers of attorney executed in
this state
or by residents of this state. Further, this act applies to acts
and trans-
actions of attorneys in fact in this state or outside this state
under powers
of attorney that refer to the power of attorney law of Kansas in
the in-
strument creating the power of attorney, if any of the following
conditions
are met:
(1) The principal or attorney in fact was
a resident of this state at the
time the power of attorney was executed;
(2) the powers and authority conferred
relate to property, acts or
transactions in this state;
(3) the acts and transactions of the
attorney in fact or successor oc-
curred or were to occur in this state;
(4) the power of attorney was executed in
this state; or
(5) there is otherwise a reasonable
relationship between this state and
the subject matters of the power of attorney.
The power of attorney so created remains
subject to this act despite a
subsequent change in residence of the principal or the attorney in
fact
and any successor, or the removal from this state of property which
was
the subject of the power of attorney.
(b) A person who acts as an attorney in
fact or successor pursuant to
a power of attorney governed by this act is subject to personal
jurisdiction
in this state with respect to matters relating to acts and
transactions of
the attorney in fact or successor performed in this state,
performed for a
resident of this state or affecting property in this state.
(c) A durable power of attorney that
purports to have been made
under the provisions of the durable power of attorney act of
another state
is governed by the law of that state and, if durable where
executed, is
durable and may be carried out and enforced in this state.
(d) A power of attorney executed by a
resident of another state, may
authorize the carrying out in this state of all acts permitted to
be delegated
to an attorney in fact by the laws of the state of the residence of
the
principal, the laws of the state where the power of attorney is
executed
or the laws of this state, whichever law is most favorable toward
author-
izing such delegation, and is durable if so designated either under
the
laws of this state, under the laws of the state of residence of the
principal
or under the laws of the state where the power of attorney is
executed.
New Sec. 15. The repeal of the
uniform durable power of attorney
act, K.S.A. 58-610 through 58-617 and the repeal of K.S.A. 58-601
and
58-602, shall not affect the validity of powers of attorney created
under
those sections, the validity of the acts and transactions of
attorneys in fact
under authority granted in powers of attorney executed under those
sec-
tions, or the duties of attorneys in fact under powers of attorney
executed
under those sections.
New Sec. 16. The Kansas power of
attorney act adopts by reference
50 U.S.C. 591 of the soldiers and sailors civil relief act.
Sec. 17. K.S.A. 2002 Supp. 58a-602
is hereby amended to read as
follows: 58a-602. (a) Unless the terms of a trust expressly provide
that
the trust is irrevocable, the settlor may revoke or amend the
trust. This
subsection does not apply to a trust created under an instrument
executed
before the effective date of this code January
1, 2003.
(b) If a revocable trust is created or
funded by more than one settlor:
(1) To the extent the trust consists of
community property, the trust
may be revoked by either spouse acting alone but may be amended
only
by joint action of both spouses; and
(2) to the extent the trust consists of
property other than community
property, each settlor may revoke or amend the trust with regard to
the
portion of the trust property attributable to that settlor's
contribution.
(c) The settlor may revoke or amend a
revocable trust:
(1) By substantial compliance with a
method provided in the terms
of the trust; or
(2) if the terms of the trust do not
provide a method or the method
provided in the terms is not expressly made exclusive, by:
(A) A later will or codicil that
expressly refers to the trust or specif-
ically devises property that would otherwise have passed according
to the
terms of the trust; or
(B) any other method manifesting clear
and convincing evidence of
the settlor's intent.
(d) Upon revocation of a revocable trust,
the trustee shall deliver the
trust property as the settlor directs.
(e) A settlor's powers with respect to
revocation, amendment, or dis-
tribution of trust property may be exercised by an agent under a
power
of attorney only to the extent expressly authorized by the
terms of the
trust or the power of attorney.
(f) A conservator of the settlor may
exercise a settlor's powers with
respect to revocation, amendment, or distribution of trust property
only
with the approval of the court supervising the conservatorship.
(g) A trustee who does not know that a
trust has been revoked or
amended is not liable to the settlor or settlor's successors in
interest for
distributions made and other actions taken on the assumption that
the
trust had not been amended or revoked.
Sec. 18. K.S.A. 58-601, 58-602, 58-610, 58-611,
58-612, 58-613, 58-
614, 58-615, 58-616 and 58-617 and K.S.A. 2002 Supp. 58a-602
are
hereby repealed.
Sec. 19. This act shall take effect and be in
force from and after its
publication in the statute book.
Approved April 14, 2003.
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