AB 704

Current law includes language that is based on the Uniform Durable Power of

Attorney Act, as approved by the National Conference of Commissioners on Uniform

State Laws in 1979. Under that uniform act, the traditional power of an agent to act

on behalf of the principal in legal or business matters may be made durable. A

durable power of attorney is a power that continues or, sometimes, begins after the

principal becomes incapacitated. Current law also includes a statutory power of

attorney form based on the Uniform Statutory Power of Attorney Act, which provides

a statutory power of attorney form that is legally sufficient.

This bill adopts the Uniform Power of Attorney Act to provide the statutory

authorization for a person to act on someone else's behalf in legal or business matters.

The new uniform act supersedes both prior uniform acts. The person authorized to

act is the "agent," and the person granting the authorization is the "principal." The

durable power of attorney offers a method of surrogate decision making for persons

whose modest assets may not justify incapacity planning with a trust. The durable

power of attorney is also used to avoid guardianship.

This bill includes definitions and general rules that are not in current law. The

term "incapacity" replaces the term "disability" used in current law. The bill's

definition of "incapacity" is consistent with the standard for appointment of a

guardian under current law. Under the bill, a power of attorney is durable unless

it contains express language indicating otherwise. The bill also provides that, unless

the principal specifies that the power of attorney is to become effective upon a future

date or event, the authority of an agent becomes effective when the power of attorney

is executed. Current law requires express language to make the power durable and

is silent on when the agent's authority becomes effective.

The bill provides that the authority granted to a principal's spouse is revoked

upon the commencement of proceedings for legal separation, marital dissolution, or

annulment. The bill also provides that the authority granted to the principal's

domestic partner is revoked if the domestic partnership is terminated. The bill also

provides guidance where there is none in current law regarding the default rules for

co-agents' and successor agents' reimbursement and compensation, an agent's

acceptance of appointment, the agent's duties, and an agent's resignation. The bill

sets out a comprehensive list of persons who may petition the court to review the

agent's conduct, and addresses agent liability.

The bill includes a new provision that protects persons who in good faith accept

an acknowledged power of attorney without actual knowledge that the power of

attorney is revoked, terminated, or invalid or that the agent is exceeding or

improperly exercising the agent's powers.

The bill specifies when a person may, in good faith, refuse to accept an

acknowledged power of attorney. For example, a person may refuse if the power of

attorney would be inconsistent with federal law, when the person has actual