SB230 (2017) Detail

Establishing the Uniform Power of Attorney Act.


CHAPTER 178

SB 230-FN - FINAL VERSION

 

03/16/2017   0771s

4May2017... 1504h

05/31/2017   2030EBA

 

2017 SESSION

17-0824

08/03

 

SENATE BILL 230-FN

 

AN ACT establishing the Uniform Power of Attorney Act.

 

SPONSORS: Sen. Carson, Dist 14; Sen. Lasky, Dist 13; Rep. Guthrie, Rock. 13; Rep. Wall, Straf. 6; Rep. Kenison, Merr. 15

 

COMMITTEE: Judiciary

 

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ANALYSIS

 

This bill adopts the Uniform Power of Attorney Act.

 

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Explanation: Matter added to current law appears in bold italics.

Matter removed from current law appears [in brackets and struckthrough.]

Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.

03/16/2017   0771s

4May2017... 1504h

05/31/2017   2030EBA 17-0824

08/03

 

STATE OF NEW HAMPSHIRE

 

In the Year of Our Lord Two Thousand Seventeen

 

AN ACT establishing the Uniform Power of Attorney Act.

 

Be it Enacted by the Senate and House of Representatives in General Court convened:

 

178:1  New Chapter; Uniform Power of Attorney Act.  Amend RSA by inserting after chapter 564-D the following new chapter:

CHAPTER 564-E

UNIFORM POWER OF ATTORNEY ACT

ARTICLE 1

GENERAL PROVISIONS

564-E:101  Short Title.  This chapter may be cited as the Uniform Power of Attorney Act.

564-E:102  Definitions.  In this chapter:

(1)  “Agent” means a person granted authority to act for a principal under a power of attorney, whether denominated an agent, attorney-in-fact, or otherwise.  The term includes an original agent, coagent, successor agent, and a person to whom an agent’s authority is delegated.

(2)  “Conservator” means a person appointed by a court to administer the estate of an individual pursuant to RSA 464-A:13.

(3)  “Court” means a court of competent jurisdiction.

(4)  “Durable,” with respect to a power of attorney, means not terminated by the principal’s incapacity.

(5)  “Electronic” means relating to technology having electrical, digital, magnetic, wireless, optical, electromagnetic, or similar capabilities.

(6)  “Electronic signature” means an electronic sound, symbol, or process attached to or logically associated with a record and executed or adopted by a person with the intent to sign the record.

(7)  “General power of attorney” means a power of attorney that is not limited by its terms to a specified transaction or series of transactions, to a specific purpose, or to a specific asset or set of assets, or a power of attorney that grants an agent the authority to do any one or more of the acts described in RSA 564-E:201(a).

(8)  “Guardian” means a guardian of the estate, a guardian of the person, or either a guardian of the estate or a guardian of the person, as the context may require.

(9)  “Guardian of the estate” means a person appointed by a court to administer the estate of an adult individual, including a person appointed pursuant to RSA 464-A.

(10)  “Guardian of the person”' means a person appointed by a court to make decisions regarding the support, care, education, health, and welfare of an adult individual, including a person appointed pursuant to RSA 464-A.  The term does not include a guardian ad litem.

(11)  “Good faith” means honesty in fact.

(12)  “Incapacity” means inability of an individual to manage property or business affairs because the individual:

(A)  has an impairment in the ability to receive and evaluate information or make or communicate decisions even with the use of technological assistance; or

(B)  is:

(i)  missing;

(ii)  detained, including incarcerated in a penal system; or

(iii)  outside the United States and unable to return.

(13)  “Include” and “including” means the same as “include, without limitation” and “including, without limitation,” regardless of whether expressly specified.

(14)  “Person” means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, public corporation, government or governmental subdivision, agency, or instrumentality, or any other legal or commercial entity.

(15)  “Power of attorney” means a writing or other record that grants authority to an agent to act in the place of the principal, whether or not the term power of attorney is used.  

(16)  “Presently exercisable general power of appointment,” with respect to property or a property interest subject to a power of appointment, means power exercisable at the time in question to vest absolute ownership in the principal individually, the principal’s estate, the principal’s creditors, or the creditors of the principal’s estate.  The term includes a power of appointment not exercisable until the occurrence of a specified event, the satisfaction of an ascertainable standard, or the passage of a specified period only after the occurrence of the specified event, the satisfaction of the ascertainable standard, or the passage of the specified period.  The term does not include a power exercisable in a fiduciary capacity or only by will.

(17)  “Principal” means an individual who grants authority to an agent in a power of attorney.

(18)  “Property” means anything that may be the subject of ownership, whether real or personal, or legal or equitable, or any interest or right therein.

(19)  “Record” means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.

(20)  “Sign” means, with present intent to authenticate or adopt a record:

(A)  to execute or adopt a tangible symbol; or

(B)  to attach to or logically associate with the record an electronic sound, symbol, or process.

(21)  “State” means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States.  The term includes an Indian tribe or band recognized by federal law or formally acknowledged by a state.

(22)  “Stocks and bonds” means stocks, bonds, mutual funds, and all other types of securities and financial instruments, whether held directly, indirectly, or in any other manner.  The term does not include commodity futures contracts and call or put options on stocks or stock indexes.

564-E:103  Applicability.  This chapter applies to all powers of attorney except:

(1)  a power to the extent it is coupled with an interest in the subject of the power, including a power given to or for the benefit of a creditor in connection with a credit transaction;

(2)  a power to make health-care decisions;

(3)  a proxy or other delegation to exercise voting rights or management rights with respect to an entity; and

(4)  a power created on a form prescribed by a government or governmental subdivision, agency, or instrumentality for a governmental purpose.

564-E:104  Power of Attorney is Durable.  A power of attorney created under this chapter is durable unless it expressly provides that it is terminated by the incapacity of the principal.

564-E:105  Execution Of Power Of Attorney.

(a)  With regard to a general power of attorney:

(1)  The power of attorney must be signed (other than by electronic signature) by the principal or in the principal’s conscious presence by another individual directed by the principal to sign the principal’s name on the power of attorney and must be acknowledged before a notary public or other individual authorized by law to take acknowledgments.  

(2)  A disclosure statement in substantially the following form, signed (other than by electronic signature) by the principal or by another individual directed by the principal to sign the principal’s name, must be affixed to the power of attorney:

INFORMATION CONCERNING THE POWER OF ATTORNEY

THIS IS AN IMPORTANT LEGAL DOCUMENT.  BEFORE SIGNING THIS DOCUMENT YOU SHOULD KNOW THESE IMPORTANT FACTS:

Notice to the Principal:  As the “Principal,” you are using this Power of Attorney to grant power to another person (called the “Agent”) to make decisions, including, but not limited to, decisions concerning your money, property, or both, and to use your money, property, or both on your behalf.  If this Power of Attorney does not limit the powers that you give to your Agent, your Agent will have broad and sweeping powers to sell or otherwise dispose of your property, and to spend your money without advance notice to you or approval by you.  Unless you have expressly provided otherwise in this Power of Attorney, your Agent will have these powers before you become incapacitated, and unless you have expressly provided otherwise in this Power of Attorney, your Agent will continue to have these powers after you become incapacitated.  You have the right to retain this Power of Attorney and to release it later or to request that another person retain this Power of Attorney on your behalf and release it only if one or more conditions specified in advance by you are satisfied.  You have the right to revoke or take back this Power of Attorney at any time, so long as you are of sound mind.  If there is anything about this Power of Attorney that you do not understand, you should seek professional advice.

(b)  A power of attorney to convey real estate must be signed (other than by electronic signature) by the principal or in the principal’s conscious presence by another individual directed by the principal to sign the principal’s name on the general power of attorney and must be acknowledged before a notary public or other individual authorized by law to take acknowledgments.

(c)  Any other power of attorney must be signed by the principal or in the principal’s conscious presence by another individual directed by the principal to sign the principal’s name on the power of attorney.

(d)  A signature on a power of attorney is presumed to be genuine if the principal acknowledges the signature before a notary public or other individual authorized by law to take acknowledgments.

564-E:106  Validity of Power of Attorney.

(a)  A power of attorney executed in this state on or after the effective date of this chapter is valid if its execution complies with RSA 564-E:105.

(b)  A power of attorney executed in this state before the effective date of this chapter is valid if its execution complied with the law of this state as it existed at the time of execution.

(c)  A power of attorney executed other than in this state is valid in this state if, when the power of attorney was executed, the execution complied with:

(1)  the law of the jurisdiction that determines the meaning and effect of the power of attorney pursuant to RSA 564-E:107; or

(2)  the requirements for a military power of attorney pursuant to 10 U.S.C. section 1044b, as amended.

(d)  Except as otherwise provided in the power of attorney or by statute other than this chapter, a photocopy or electronically transmitted copy of an original power of attorney has the same effect as the original.

564-E:107  Meaning and Effect of Power of Attorney.  The meaning and effect of a power of attorney is determined by the law of the jurisdiction indicated in the power of attorney and, in the absence of an indication of jurisdiction, by the law of the jurisdiction in which the power of attorney was executed.

564-E:108  Nomination of Guardian; Relation of Agent to Court-Appointed Fiduciary.

(a)  In a power of attorney, a principal may nominate a guardian of the principal's estate or guardian of the principal's person for consideration by the court if protective proceedings for the principal's estate or person are begun after the principal executes the power of attorney.  Except for good cause shown or disqualification, the court shall make its appointment in accordance with the principal's most recent nomination.

(b)  If, after a principal executes a power of attorney, a court appoints a conservator or guardian of the principal's estate or other fiduciary charged with the management of some or all of the principal's property:

(1)  the agent is accountable to the fiduciary as well as to the principal;

(2)  the power of attorney is not terminated and the agent's authority continues unless limited, suspended, or terminated by the court; and

(3)  The fiduciary shall have the same power as the principal to revoke, suspend, or  terminate all or any part of such power of attorney.

564-E:109  When Power Of Attorney Effective.

(a)  A power of attorney is effective when executed unless the principal provides in the power of attorney that it becomes effective at a future date or upon the occurrence of a future event or contingency.

(b)  If a power of attorney becomes effective upon the occurrence of a future event or contingency, the principal, in the power of attorney, may authorize one or more persons to determine in a writing or other record that the event or contingency has occurred.

(c)  If a power of attorney becomes effective upon the principal's incapacity and the principal has not authorized a person to determine whether the principal is incapacitated, or the person authorized is unable or unwilling to make the determination, the power of attorney becomes effective upon a determination in a writing or other record by:

(1)  a physician that the principal is incapacitated within the meaning of RSA 564-E:102(12)(A); or

(2)  a judge, or an appropriate governmental official that the principal is incapacitated within the meaning of RSA 564-E:102(12)(B).

(d)  A person authorized by the principal in the power of attorney to determine that the principal is incapacitated may act as the principal's personal representative pursuant to the Health Insurance Portability and Accountability Act, sections 1171 through 1179 of the Social Security Act, 42 U.S.C. section 1320d, as amended, and applicable regulations, to obtain access to the principal's health-care information and communicate with the principal's health-care provider.

564-E:110  Termination of Power of Attorney or Agent's Authority.

(a)  A power of attorney terminates when:

(1)  the principal dies;

(2)  the principal becomes incapacitated, if the power of attorney is not durable;

(3)  the principal revokes the power of attorney;

(4)  the power of attorney provides that it terminates;

(5)  the purpose of the power of attorney is accomplished; or

(6)  the principal revokes the agent's authority or the agent dies, becomes incapacitated, or resigns, and the power of attorney does not provide for another agent to act under the power of attorney.

(b)  An agent's authority terminates when:

(1)  the principal revokes the authority;

(2)  the agent dies, becomes incapacitated, or resigns;

(3)  a petition for divorce, annulment, separation or a decree of nullity is filed with respect to the agent's marriage to the principal, unless the power of attorney otherwise provides; or

(4)  the power of attorney terminates.

(c)  Unless the power of attorney otherwise provides, an agent's authority is exercisable until the authority terminates under subsection (b), notwithstanding a lapse of time since the execution of the power of attorney.

(d)  Termination of an agent's authority or of a power of attorney is not effective as to the agent or another person that, without actual knowledge of the termination, acts in good faith under the power of attorney.  An act so performed, unless otherwise invalid or unenforceable, binds the principal and the principal's successors in interest.

(e)  Incapacity of the principal of a power of attorney that is not durable does not revoke or terminate the power of attorney as to an agent or other person that, without actual knowledge of the incapacity, acts in good faith under the power of attorney.  An act so performed, unless otherwise invalid or unenforceable, binds the principal and the principal's successors in interest.

(f)  The execution of a power of attorney does not revoke a power of attorney previously executed by the principal unless the subsequent power of attorney provides that the previous power of attorney is revoked or that all other powers of attorney are revoked.

564-E:111  Coagents and Successor Agents.

(a)  A principal may designate 2 or more persons to act as coagents.  Unless the power of attorney otherwise provides, the coagents must exercise their authority jointly.

(b)  A principal may designate one or more successor agents to act if an agent resigns, dies, becomes incapacitated, is not qualified to serve, or declines to serve.  A principal may grant authority to designate one or more successor agents to an agent or other person designated by name, office, or function.  Unless the power of attorney otherwise provides, a successor agent:

(1)  has the same authority as that granted to the original agent; and

(2)  may not act until all predecessor agents have resigned, died, become incapacitated, are no longer qualified to serve, or have declined to serve.

(c)  Except as otherwise provided in the power of attorney and subsection (d), an agent that does not participate in or conceal a breach of fiduciary duty committed by another agent, including a predecessor agent, is not liable for the actions of the other agent.

(d)  A coagent that has actual knowledge of a breach or imminent breach of fiduciary duty by another coagent shall notify the principal and, if the principal is incapacitated, take any action reasonably appropriate in the circumstances to safeguard the principal's best interest.  A coagent that fails to notify the principal or take action as required by this subsection is liable for the reasonably foreseeable damages that could have been avoided if the coagent had notified the principal or taken such action.

564-E:112  Reimbursement and Compensation of Agent.  Unless the power of attorney otherwise provides, an agent is entitled to reimbursement of expenses reasonably incurred on behalf of the principal and to compensation that is reasonable under the circumstances.

564-E:113  Agent's Authority and Agent's Acceptance or Declination.

(a)  A person designated as agent under a general power of attorney shall have no authority to act as agent unless, at any time prior to exercising the power granted under the general power of attorney and not necessarily at the time the general power of attorney is signed by the principal, the person has signed (other than by electronic signature) and affixed to the general power of attorney an acknowledgment in substantially the following form:

I,_________________________, have read the attached power of attorney and am the person identified as the agent for the principal.  I hereby acknowledge that when I act as agent, I am given power under the power of attorney to make decisions about money, property, or both belonging to the principal, and to spend the principal’s money, property, or both on the principal’s behalf, in accordance with the terms of the power of attorney.  When acting as agent, I have duties (called “fiduciary duties”) to act in the principal’s best interest, to act in good faith, and to act only within the scope of authority granted in the power of attorney, as well as other duties imposed by law to the extent not provided otherwise in the power of attorney.  As an agent, I am not entitled to use the money or property for my own benefit or to make gifts to myself or others unless the power of attorney specifically gives me the authority to do so.  As an agent, my authority under the power of attorney will end when the principal dies and I will not have authority to manage or dispose of any property or administer the estate of the principal.  If I violate a fiduciary duty under the power of attorney, I may be liable for damages and may be subject to criminal prosecution.  If there is anything about the power of attorney, or my duties under it, that I do not understand, I understand that I should seek professional advice.

(b)  A person accepts appointment as an agent under a power of attorney by substantially complying with the method of acceptance provided in the terms of the power of attorney or, if the terms of the power of attorney do not provide a method or if the method provided is not expressly made exclusive, by exercising authority or performing duties as an agent or by any other assertion or conduct indicating acceptance.  A person designated as agent under a power of attorney has no duties unless the person has accepted the appointment.

(c)  A person that has not yet accepted appointment as an agent under a power of attorney may decline the appointment.

564-E:114  Agent's Duties.

(a)  Notwithstanding provisions in the power of attorney, an agent that has accepted appointment shall:

(1)  act in accordance with the principal's reasonable expectations to the extent actually known by the agent and, otherwise, in the principal's best interest;

(2)  act in good faith; and

(3)  act only within the scope of authority granted in the power of attorney.

(b)  Except as otherwise provided in the power of attorney, an agent that has accepted appointment shall:

(1)  act loyally for the principal's benefit;

(2)  act so as not to create a conflict of interest that impairs the agent's ability to act impartially in the principal's best interest;

(3)  act with the care, competence, and diligence ordinarily exercised by agents in similar circumstances;

(4)  keep a record of all receipts, disbursements, and transactions made on behalf of the principal; and

(5)  cooperate with a person that has authority to make health-care decisions for the principal to carry out the principal's reasonable expectations to the extent actually known by the agent and, otherwise, act in the principal's best interest.

(c)  An agent that acts in good faith is not liable to any beneficiary of the principal's estate plan.

(d)  An agent that acts with care, competence, and diligence for the best interest of the principal is not liable solely because the agent also benefits from the act or has an individual or conflicting interest in relation to the property or affairs of the principal.

(e)  If an agent is selected by the principal because of special skills or expertise possessed by the agent or in reliance on the agent's representation that the agent has special skills or expertise, the special skills or expertise must be considered in determining whether the agent has acted with care, competence, and diligence under the circumstances.

(f)  Absent a breach of duty to the principal, an agent is not liable if the value of the principal's property declines.

(g)  An agent that exercises authority to delegate to another person the authority granted by the principal or that engages another person on behalf of the principal is not liable for an act, error of judgment, or default of that person if the agent exercises care, competence, and diligence in selecting and monitoring the person.

(h)  Except as otherwise provided in the power of attorney, if any of the persons designated in RSA 564-E:116(a) makes a written request of the agent to submit an accounting or to report his, her or its acts as agent, then the agent shall comply within 60 days after the request was made.  If the agent has not submitted an accounting or report within the 60-day period, then the person making such a request may petition the court to compel the agent to comply.  The 60-day period shall be shortened to 7 days if the decision at issue relates to a decision affecting health care.  The time limit in this subsection may be shortened by court order for good cause.

564-E:115  Exoneration of Agent.  A provision in a power of attorney relieving an agent of liability for breach of duty is binding on the principal and the principal's successors in interest except to the extent the provision:

(1) relieves the agent of liability for breach of duty committed dishonestly, with an improper motive, or with reckless indifference to the purposes of the power of attorney or the best interest of the principal; or

(2)  was inserted as a result of an abuse of a confidential or fiduciary relationship with the principal.

564-E:116  Judicial Relief.

(a)  The following persons may petition a court to determine whether a power of attorney is in effect, to determine whether a power of attorney has terminated, to determine whether an agent’s authority has terminated, to determine whether a particular gift is authorized as provided in subsection (g), to determine whether a particular transaction is authorized, to construe a power of attorney or to review the agent’s conduct, and to grant appropriate relief:

(1)  the principal;

(2)  the agent;

(3)  a guardian, conservator, or other fiduciary acting for the principal;

(4)  a person authorized to make health-care decisions for the principal;

(5)  the principal’s spouse, parent, or descendant;

(6)  a person who would take property of the principal under the laws of intestate succession if the principal were to die at the time the petition is filed, whether or not the principal has a will;

(7)  a person named as a beneficiary to receive any property, benefit, or contractual right on the principal’s death or as a beneficiary of a trust created by or for the principal that has a financial interest in the principal’s estate;

(8)  the department of justice, the department of health and human services, the county attorney, or any other governmental agency having regulatory authority to protect the welfare of the principal.

(b)  If there is no person specified in subsection (a) who is able or willing to file a petition for a purposes specified in  subsection (a), then the court may entertain a petition for such purpose from any other interested party who or which demonstrates to the satisfaction of the court the following:

(1)  sufficient knowledge of the principal to demonstrate interest in the welfare of the principal; and

(2)  the lack of capacity of the principal to bring such a petition.

(c)  Upon motion by the principal, the court shall dismiss a petition filed under this section, unless the court finds that the principal lacks capacity to revoke the agent's authority or the power of attorney.

(d)  The court may hold hearings, issue injunctions, make orders and decrees, and take other actions that are necessary or proper in making determinations and providing relief on matters presented by a petition filed under this section.

(e)  In a proceeding under this section commenced by the filing of a petition by a person other than the agent, the court may order the agent to pay reasonable attorney’s fees to the petitioner if the court determines that the agent has clearly violated the agent’s fiduciary duties under the power of attorney or has failed without any reasonable cause or justification to submit accounts or reports after written request pursuant to RSA 564-E:114(h).

(f)  Unless good cause is shown, court hearings conducted on a petition filed under this section shall be closed to the general public.  Only the parties, their counsel, witnesses, and representatives of agencies who are present to perform their official duties shall be admitted.  The records, reports, and evidence presented to the court shall be confidential.  The final decision of the court shall be a public record.

(g)  With regard to a petition to determine whether a particular gift is authorized,

(1)  the court shall appoint a guardian ad litem if the proposed gift would benefit the agent personally or otherwise create a potential conflict of interest between the principal's interests and the agent's personal interests;

(2)  the court shall consider all relevant factors, including, without limitation, the factors set forth in RSA 564-E:217(b); and

(3)  the gift shall be presumed to be lawful if the power of attorney is accompanied by the disclosure statement under RSA 564-E:105 and the agent's acknowledgment under RSA 564-E:113 and expressly grants the agent the authority to make the gift under RSA 564-E:201(a)(2) or (b); otherwise, the agent shall be required to prove by a preponderance of evidence that the gift was authorized and was not a result of undue influence, fraud, or misrepresentation.

(h)  The department of justice, the department of health and human services, and the county attorney, shall be notified and shall have the opportunity to address the court in any proceeding under this section if the court has concerns relative to:

(1)  The impact on the principal of any period of Medicaid ineligibility that would result from a proposed gift; or

(2)  Whether the principal has been the victim of a crime or has been or is at risk of being abused, neglected, or exploited within the meaning of RSA 161-F:43.

564-E:117  Agent’s Liability.  An agent that violates this chapter may be held liable, and an agent that knowingly, willfully, or recklessly violates this chapter shall be liable, to the principal or the principal’s successors in interest for the amount required to:

(1)  restore the value of the principal’s property to what it would have been had the violation not occurred; and

(2)  reimburse the principal or the principal’s successors in interest for the attorney’s fees and costs paid on the agent’s behalf.

564-E:118  Agent’s Resignation; Notice.  An agent may resign by substantially complying with a method of resignation provided in the terms of the power of attorney or, if the terms of the power of attorney do not provide a method or the method provided in the terms is not expressly made exclusive or is not possible to achieve, by giving written notice to the principal and, if the principal is incapacitated:

(1)  to the conservator or guardian, if one has been appointed for the principal, and a coagent or successor agent; or

(2)  if there is no person described in subsection (1), to:

(A)  a parent, spouse, or descendant of the principal;

(B)  the principal’s caregiver;

(C)  another person reasonably believed by the agent to have sufficient interest in the principal’s welfare; or

(D)  a governmental agency having authority to protect the welfare of the principal.

564-E:119  Acceptance of and Reliance Upon Acknowledged Power of Attorney.

(a)  For purposes of this section and RSA 564-E:120, "acknowledged" means purportedly verified before a notary public or other individual authorized to take acknowledgments.

(b)  A person that in good faith accepts an acknowledged power of attorney without actual knowledge that the signature is not genuine may presume that the signature is genuine.

(c)  A person that in good faith accepts an acknowledged power of attorney without actual knowledge that the power of attorney is void, invalid, or terminated, that the purported agent's authority is void, invalid, or terminated, or that the agent is exceeding or improperly exercising the agent's authority may rely upon the power of attorney as if the power of attorney were genuine, valid, and still in effect, the agent's authority were genuine, valid, and still in effect, and the agent had not exceeded and had properly exercised the authority.

(d)  A person that is asked to accept an acknowledged power of attorney may request, and rely upon, without further investigation:

(1)  an agent's certification under penalty of perjury of any factual matter concerning the principal, agent, or power of attorney;

(2)  an English translation of the power of attorney if the power of attorney contains, in whole or in part, language other than English; and

(3)  an opinion of counsel as to any matter of law concerning the power of attorney if the person making the request provides in a writing or other record the reason for the request.

(e)  An English translation or an opinion of counsel requested under this section must be provided at the principal's expense unless the request is made more than 7 business days after the power of attorney is presented for acceptance.

(f)  For purposes of this section and RSA 564-E:120, a person that conducts activities through employees is without actual knowledge of a fact relating to a power of attorney, a principal, or an agent if the employee conducting the transaction involving the power of attorney is without actual knowledge of the fact.

564-E:120  Liability For Refusal To Accept Acknowledged Power of Attorney.

(a)  Except as otherwise provided in subsection (b):

(1)  a person shall either accept an acknowledged power of attorney or request a certification, a translation, or an opinion of counsel under RSA 564-E:119(d) no later than 7 business days after presentation of the power of attorney for acceptance;

(2)  if a person requests a certification, a translation, or an opinion of counsel under RSA 564-E:119(d), the person shall accept the power of attorney no later than 5 business days after receipt of the certification, translation, or opinion of counsel; and

(3)  a person may not require an additional or different form of power of attorney for authority granted in the power of attorney presented.

(b)  A person is not required to accept an acknowledged power of attorney if:

(1)  the person is not otherwise required to engage in a transaction with the principal in the same circumstances;

(2)  engaging in a transaction with the agent or the principal in the same circumstances would be inconsistent with federal law, including, without limitation, federal rules and federal regulations;

(3)  the person has actual knowledge of the termination of the agent’s authority or of the power of attorney before exercise of the power;

(4)  a request for a certification, a translation, or an opinion of counsel under RSA 564-E:119(d) is refused;

(5)  the person in good faith believes that the power is not valid or that the agent does not have the authority to perform the act requested, whether or not a certification, a translation, or an opinion of counsel under RSA 564-E:119(d) has been requested or provided; or

(6)  the person makes, or has actual knowledge that another person has made, a report to the appropriate adult protective services or law enforcement agency stating a good faith belief that the principal  may be subject to physical or financial abuse, neglect, exploitation, or abandonment by the agent or a person acting for or with the agent.

(c)  A person that refuses in violation of this section to accept an acknowledged power of attorney:

(1)  is subject to a court order mandating acceptance of the power of attorney; and

(2)  may be held liable for reasonable attorney’s fees and costs incurred in any action or proceeding that confirms the validity of the power of attorney or mandates acceptance of the power of attorney.

564-E:121  Principles of Law and Equity.  Unless displaced by a provision of this chapter, the principles of law and equity supplement this chapter.

564-E:122  Laws Applicable to Financial Institutions and Entities.  This chapter does not supersede any other law applicable to financial institutions or other entities, and the other law controls if inconsistent with this chapter.

564-E:123  Remedies Under Other Law.  The remedies under this chapter are not exclusive and do not abrogate any right or remedy under the law of this state other than this chapter.

ARTICLE 2

AUTHORITY

564-E:201  Authority That Requires Specific Grant; Grant of General Authority.

(a)  An agent under a power of attorney may do the following on behalf of the principal or with the principal’s property only if the power of attorney expressly grants the agent the authority and exercise of the authority is not otherwise prohibited by another agreement or instrument to which the authority or property is subject:

(1)  create, amend, revoke, or terminate an inter vivos trust;

(2)  make a gift, except the agent may not make a gift that will leave the principal without sufficient assets or income to provide for the principal’s care without relying on Medicaid, other public assistance or charity unless the power of attorney expressly grants such authority or unless the gift is approved in advance by the court upon a determination that the gift is authorized in accordance with RSA 564-E:116(g);

(3)  create or change rights of survivorship;

(4)  create or change a beneficiary designation;

(5)  delegate authority granted under the power of attorney;

(6)  waive the principal’s right to be a beneficiary of a joint and survivor annuity, including a survivor benefit under a retirement plan;

(7)  exercise a fiduciary power that the principal has authority to delegate to the extent that the principal specifically and expressly delegates such power to the agent; or

(8)  exercise authority over the content of electronic communications sent or received by the principal.

(b)  Notwithstanding a grant of authority to do an act described in  subsection (a):

(1)  an agent may not exercise authority under a power of attorney to create in the agent, or in an individual to whom the agent owes a legal obligation of support, an interest in the principal’s property by gift unless the power of attorney otherwise provides or unless the gift is approved in advance by the court upon a determination that the gift is authorized in accordance with RSA 564-E:116(g); and

(2)  an agent (other than an agent that is an ancestor, spouse, or descendant of the principal) may not exercise authority under a power of attorney to create in the agent, or in an individual to whom the agent owes a legal obligation of support, an interest in the principal’s property by any manner other than a gift, including, without limitation, by right of survivorship, beneficiary designation, or disclaimer, unless the power of attorney otherwise provides.

(c)  Subject to subsections (a), (b), (d), and (e), if a power of attorney grants to an agent authority to do all acts that a principal could do, the agent has the general authority described in RSA 564-E:204 through RSA 564-E:216.

(d)  Unless the power of attorney otherwise provides, a grant of authority to make a gift is subject to RSA 564-E:217.

(e)  Subject to subsections (a), (b), and (d), if the subjects over which authority is granted in a power of attorney are similar or overlap, the broadest authority controls.

(f)  Authority granted in a power of attorney is exercisable with respect to property that the principal has when the power of attorney is executed or acquires later, whether or not the property is located in this state and whether or not the authority is exercised or the power of attorney is executed in this state.

(g)  An act performed by an agent pursuant to a power of attorney has the same effect and inures to the benefit of and binds the principal and the principal's successors in interest as if the principal had performed the act.

564-E:202  Incorporation of Authority.

(a)  An agent has authority described in this article if the power of attorney refers to general authority with respect to the descriptive term for the subjects stated in RSA 564-E:204 through RSA 564-E:217 or cites the section in which the authority is described.

(b)  A reference in a power of attorney to general authority with respect to the descriptive term for a subject in RSA 564-E:204 through RSA 564-E:217 or a citation to a section of RSA 564-E:204 through RSA 564-E:217 incorporates the entire section as if it were set out in full in the power of attorney.

(c)  A principal may modify authority incorporated by reference.

564-E:203  Construction Of Authority Generally.  Except as otherwise provided in the power of attorney, by executing a power of attorney that incorporates by reference a subject described in RSA 564-E:204 through RSA 564-E:217 or that grants to an agent authority to do all acts that a principal could do pursuant to RSA 564-E:201(c), a principal authorizes the agent, with respect to that subject, to:

(1)  demand, receive, and obtain by litigation or otherwise, money or another thing of value to which the principal is, may become, or claims to be entitled, and conserve, invest, disburse, or use anything so received or obtained for the purposes intended;

(2)  contract in any manner with any person, on terms agreeable to the agent, to accomplish a purpose of a transaction and perform, rescind, cancel, terminate, reform, restate, release, or modify the contract or another contract made by or on behalf of the principal;

(3)  execute, acknowledge, seal, deliver, file, or record any instrument or communication the agent considers desirable to accomplish a purpose of a transaction, including creating at any time a schedule listing some or all of the principal's property and attaching it to the power of attorney;

(4)  initiate, participate in, submit to alternative dispute resolution, settle, oppose, or propose or accept a compromise with respect to a claim existing in favor of or against the principal or intervene in litigation relating to the claim;

(5)  seek on the principal's behalf the assistance of a court or other governmental agency to carry out an act authorized in the power of attorney;

(6)  engage, compensate, and discharge an attorney, accountant, discretionary investment manager, expert witness, or other advisor;

(7)  prepare, execute, and file a record, report, or other document to safeguard or promote the principal's interest under a statute or regulation;

(8)  communicate with any representative or employee of a government or governmental subdivision, agency, or instrumentality, on behalf of the principal;

(9)  access communications intended for, and communicate on behalf of the principal, whether by mail, electronic transmission, telephone, or other means; and

(10)  do any lawful act with respect to the subject and all property related to the subject.

564-E:204  Real Property.  Unless the power of attorney otherwise provides, language in a power of attorney granting general authority with respect to real property authorizes the agent to:

(1)  demand, buy, lease, receive, accept as a gift or as security for an extension of credit, or otherwise acquire or reject an interest in real property or a right incident to real property;

(2)  sell; exchange; convey with or without covenants, representations, or warranties; quitclaim; release; surrender; retain title for security; encumber; partition; consent to partitioning; subject to an easement or covenant; subdivide; apply for zoning or other governmental permits; plat or consent to platting; develop; grant an option concerning; lease; sublease; contribute to an entity in exchange for an interest in that entity; or otherwise grant or dispose of an interest in real property or a right incident to real property;

(3)  pledge or mortgage an interest in real property or right incident to real property as security to borrow money or pay, renew, or extend the time of payment of a debt of the principal or a debt guaranteed by the principal;

(4)  release, assign, satisfy, or enforce by litigation or otherwise a mortgage, deed of trust, conditional sale contract, encumbrance, lien, or other claim to real property which exists or is asserted;

(5)  manage or conserve an interest in real property or a right incident to real property owned or claimed to be owned by the principal, including:

(A)  insuring against liability or casualty or other loss;

(B)  obtaining or regaining possession of or protecting the interest or right by litigation or otherwise;

(C)  paying, assessing, compromising, or contesting taxes or assessments or applying for and receiving refunds in connection with them; and

(D)  purchasing supplies, hiring assistance or labor, and making repairs or alterations to the real property;

(6)  use, develop, alter, replace, remove, erect, or install structures or other improvements upon real property in or incident to which the principal has, or claims to have, an interest or right;

(7)  participate in a reorganization with respect to real property or an entity that owns an interest in or right incident to real property and receive, and hold, and act with respect to stocks and bonds or other property received in a plan of reorganization, including:

(A)  selling or otherwise disposing of them;

(B)  exercising or selling an option, right of conversion, or similar right with respect to them; and

(C)  exercising any voting rights in person or by proxy;

(8)  change the form of title of an interest in or right incident to real property; and

(9)  dedicate to public use, with or without consideration, easements or other real property in which the principal has, or claims to have, an interest.

564-E:205  Tangible Personal Property.  Unless the power of attorney otherwise provides, language in a power of attorney granting general authority with respect to tangible personal property authorizes the agent to:

(1)  demand, buy, receive, accept as a gift or as security for an extension of credit, or otherwise acquire or reject ownership or possession of tangible personal property or an interest in tangible personal property;

(2)  sell; exchange; convey with or without covenants, representations, or warranties; quitclaim; release; surrender; create a security interest in; grant options concerning; lease; sublease; or, otherwise dispose of tangible personal property or an interest in tangible personal property;

(3)  grant a security interest in tangible personal property or an interest in tangible personal property as security to borrow money or pay, renew, or extend the time of payment of a debt of the principal or a debt guaranteed by the principal;

(4)  release, assign, satisfy, or enforce by litigation or otherwise, a security interest, lien, or other claim on behalf of the principal, with respect to tangible personal property or an interest in tangible personal property;

(5)  manage or conserve tangible personal property or an interest in tangible personal property on behalf of the principal, including:

(A)  insuring against liability or casualty or other loss;

(B)  obtaining or regaining possession of or protecting the property or interest, by litigation or otherwise;

(C)  paying, assessing, compromising, or contesting taxes or assessments or applying for and receiving refunds in connection with taxes or assessments;

(D)  moving the property from place to place;

(E)  storing the property for hire or on a gratuitous bailment; and

(F)  using and making repairs, alterations, or improvements to the property; and

(6)  change the form of title of an interest in tangible personal property.

564-E:206  Stocks and Bonds.  Unless the power of attorney otherwise provides, language in a power of attorney granting general authority with respect to stocks and bonds authorizes the agent to:

(1)  buy, sell, and exchange stocks and bonds;

(2)  establish, continue, modify, or terminate an account with respect to stocks and bonds;

(3)  pledge stocks and bonds as security to borrow, pay, renew, or extend the time of payment of a debt of the principal;

(4)  receive certificates and other evidences of ownership with respect to stocks and bonds; and

(5)  exercise voting rights with respect to stocks and bonds in person or by proxy, enter into voting trusts, and consent to limitations on the right to vote.

564-E:207  Commodities and Options.  Unless the power of attorney otherwise provides, language in a power of attorney granting general authority with respect to commodities and options authorizes the agent to:

(1)  buy, sell, exchange, assign, settle, and exercise commodity futures contracts and call or put options on stocks or stock indexes traded on a regulated option exchange; and

(2)  establish, continue, modify, and terminate option accounts.

564-E:208  Banks And Other Financial Institutions.  Unless the power of attorney otherwise provides, language in a power of attorney granting general authority with respect to banks and other financial institutions authorizes the agent to:

(1)  continue, modify, and terminate an account or other banking arrangement made by or on behalf of the principal;

(2)  establish, modify, and terminate an account or other banking arrangement with a bank, trust company, savings and loan association, credit union, thrift company, brokerage firm, or other financial institution selected by the agent;

(3)  contract for services available from a financial institution, including renting a safe deposit box or space in a vault;

(4)  withdraw, by check, order, electronic funds transfer, or otherwise, money or property of the principal deposited with or left in the custody of a financial institution;

(5)  receive statements of account, vouchers, notices, and similar documents from a financial institution and act with respect to them;

(6)  enter a safe deposit box or vault and withdraw or add to the contents;

(7)  borrow money and pledge as security personal property of the principal necessary to borrow money or pay, renew, or extend the time of payment of a debt of the principal or a debt guaranteed by the principal;

(8)  make, assign, draw, endorse, discount, guarantee, and negotiate promissory notes, checks, drafts, and other negotiable or nonnegotiable paper of the principal or payable to the principal or the principal's order, transfer money, receive the cash or other proceeds of those transactions, and accept a draft drawn by a person upon the principal and pay it when due;

(9)  receive for the principal and act upon a sight draft, warehouse receipt, or other document of title whether tangible or electronic, or other negotiable or nonnegotiable instrument;

(10)  apply for, receive, and use letters of credit, credit and debit cards, electronic transaction authorizations, and traveler's checks from a financial institution and give an indemnity or other agreement in connection with letters of credit; and

(11)  consent to an extension of the time of payment with respect to commercial paper or a financial transaction with a financial institution.

564-E:209  Operation of Entity or Business.  Subject to the terms of a document or an agreement governing an entity or an entity ownership interest, and unless the power of attorney otherwise provides, language in a power of attorney granting general authority with respect to operation of an entity or business authorizes the agent to:

(1)  operate, buy, sell, enlarge, reduce, or terminate an ownership interest;

(2)  perform a duty or discharge a liability and exercise in person or by proxy a right, power, privilege, or option that the principal has, may have, or claims to have;

(3)  enforce the terms of an ownership agreement;

(4)  initiate, participate in, submit to alternative dispute resolution, settle, oppose, or propose or accept a compromise with respect to litigation to which the principal is a party because of an ownership interest;

(5)  exercise in person or by proxy, or enforce by litigation or otherwise, a right, power, privilege, or option the principal has or claims to have as the holder of stocks and bonds;

(6)  initiate, participate in, submit to alternative dispute resolution, settle, oppose, or propose or accept a compromise with respect to litigation to which the principal is a party concerning stocks and bonds;

(7)  with respect to an entity or business owned solely by the principal:

(A)  continue, modify, renegotiate, extend, and terminate a contract made by or on behalf of the principal with respect to the entity or business before execution of the power of attorney;

(B)  determine:

(i)  the location of its operation;

(ii)  the nature and extent of its business;

(iii)  the methods of manufacturing, selling, merchandising, financing, accounting, and advertising employed in its operation;

(iv)  the amount and types of insurance carried; and

(v)  the mode of engaging, compensating, and dealing with its employees and accountants, attorneys, or other advisors;

(C)  change the name or form of organization under which the entity or business is operated and enter into an ownership agreement with other persons to take over all or part of the operation of the entity or business; and

(D)  demand and receive money due or claimed by the principal or on the principal's behalf in the operation of the entity or business and control and disburse the money in the operation of the entity or business;

(8)  put additional capital into an entity or business in which the principal has an interest;

(9)  join in a plan of reorganization, consolidation, conversion, domestication, or merger of the entity or business;

(10)  sell or liquidate all or part of an entity or business;

(11)  establish the value of an entity or business under a buy-out agreement to which the principal is a party;

(12)  prepare, sign, file, and deliver reports, compilations of information, returns, or other papers with respect to an entity or business and make related payments; and

(13)  pay, compromise, or contest taxes, assessments, fines, or penalties and perform any other act to protect the principal from illegal or unnecessary taxation, assessments, fines, or penalties, with respect to an entity or business, including attempts to recover, in any manner permitted by law, money paid before or after the execution of the power of attorney.

564-E:210  Insurance And Annuities.  Unless the power of attorney otherwise provides, language in a power of attorney granting general authority with respect to insurance and annuities authorizes the agent to:

(1)  continue, pay the premium or make a contribution on, modify, exchange, rescind, release, or terminate a contract procured by or on behalf of the principal which insures or provides an annuity to either the principal or another person, whether or not the principal is a beneficiary under the contract;

(2)  procure new, different, and additional contracts of insurance and annuities for the principal and the principal’s spouse, children, and other dependents, and select the amount, type of insurance or annuity, and mode of payment;

(3)  pay the premium or make a contribution on, modify, exchange, rescind, release, or terminate a contract of insurance or annuity procured by the agent;

(4)  apply for and receive a loan secured by a contract of insurance or annuity;

(5)  surrender and receive the cash surrender value on a contract of insurance or annuity;

(6)  exercise an election;

(7)  exercise investment powers available under a contract of insurance or annuity;

(8)  change the manner of paying premiums on a contract of insurance or annuity;

(9)  change or convert the type of insurance or annuity with respect to which the principal has or claims to have authority described in this section;

(10)  apply for and procure a benefit or assistance under a statute or regulation to guarantee or pay premiums of a contract of insurance on the life of the principal;

(11)  collect, sell, assign, hypothecate, borrow against, or pledge the interest of the principal in a contract of insurance or annuity;

(12)  select the form and timing of the payment of proceeds from a contract of insurance or annuity; and

(13)  pay, from proceeds or otherwise, compromise or contest, and apply for refunds in connection with, a tax or assessment levied by a taxing authority with respect to a contract of  insurance or annuity or its proceeds or liability accruing by reason of the tax or assessment.

564-E:211  Estates, Trusts, and Other Beneficial Interests.

(a)  In this section, “estate, trust, or other beneficial interest” means a trust, probate estate, guardianship, conservatorship, escrow, or custodianship or a fund from which the principal is, may become, or claims to be, entitled to a share or payment.

(b)  Unless the power of attorney otherwise provides, language in a power of attorney granting general authority with respect to estates, trusts, and other beneficial interests authorizes the agent to:

(1)  accept, receive, receipt for, sell, assign, pledge, or exchange a share in or payment from an estate, trust, or other beneficial interest;

(2)  demand or obtain money or another thing of value to which the principal is, may become, or claims to be, entitled by reason of an estate, trust, or other beneficial interest, by litigation or otherwise;

(3)  exercise for the benefit of the principal a presently exercisable general power of appointment held by the principal;

(4)  initiate, participate in, submit to alternative dispute resolution, settle, oppose, or propose or accept a compromise with respect to litigation to ascertain the meaning, validity, or effect of a deed, will, declaration of trust, or other instrument or transaction affecting the interest of the principal;

(5)  initiate, participate in, submit to alternative dispute resolution, settle, oppose, or propose or accept a compromise with respect to litigation to remove, substitute, or surcharge a fiduciary;

(6)  conserve, invest, disburse, or use anything received for an authorized purpose;

(7)  transfer an interest of the principal in real property, stocks and bonds, accounts with financial institutions or securities intermediaries, insurance, annuities, and other property to the trustee of a revocable trust created by the principal as settlor; and

(8)  reject, renounce, disclaim, release, or consent to a reduction in or modification of a share in or payment from an estate, trust, or other beneficial interest.

564-E:212  Claims and Litigation.  Unless the power of attorney otherwise provides, language in a power of attorney granting general authority with respect to claims and litigation authorizes the agent to:

(1)  assert and maintain before a court or administrative agency a claim, claim for relief, cause of action, counterclaim, offset, recoupment, or defense, including an action to recover property or other thing of value, recover damages sustained by the principal, eliminate or modify tax liability, or seek an injunction, specific performance, or other relief;

(2)  bring an action to determine adverse claims or intervene or otherwise participate in litigation;

(3)  seek an attachment, garnishment, order of arrest, or other preliminary, provisional, or intermediate relief and use an available procedure to effect or satisfy a judgment, order, or decree;

(4)  make or accept a tender, offer of judgment, or admission of facts, submit a controversy on an agreed statement of facts, consent to examination, and bind the principal in litigation;

(5)  submit to alternative dispute resolution, settle, and propose or accept a compromise;

(6)  waive the issuance and service of process upon the principal, accept service of process, appear for the principal, designate persons upon which process directed to the principal may be served, execute and file or deliver stipulations on the principal's behalf, verify pleadings, seek appellate review, procure and give surety and indemnity bonds, contract and pay for the preparation and printing of records and briefs, receive, execute, and file or deliver a consent, waiver, release, confession of judgment, satisfaction of judgment, notice, agreement, or other instrument in connection with the prosecution, settlement, or defense of a claim or litigation;

(7)  act for the principal with respect to bankruptcy or insolvency, whether voluntary or involuntary, concerning the principal or some other person, or with respect to a reorganization, receivership, or application for the appointment of a receiver or trustee which affects an interest of the principal in property or other thing of value;

(8)  pay a judgment, award, or order against the principal or a settlement made in connection with a claim or litigation; and

(9)  receive money or other thing of value paid in settlement of or as proceeds of a claim or litigation.

564-E:213  Personal and Family Maintenance.

(a)  Unless the power of attorney otherwise provides, language in a power of attorney granting general authority with respect to personal and family maintenance authorizes the agent to:

(1)  perform the acts necessary to maintain the customary standard of living of the principal, the principal’s spouse, and the following individuals, whether living when the power of attorney is executed or later born:

(A)  individuals legally entitled to be supported by the principal; and

(B)  the individuals whom the principal has customarily supported or indicated the intent to support;

(2)  make periodic payments of child support and other family maintenance required by a court or governmental agency or an agreement to which the principal is a party;

(3)  provide living quarters for the individuals described in subsection (1) by:

(A)  purchase, lease, or other contract; or

(B)  paying the operating costs, including interest, amortization payments, repairs, improvements, and taxes, for premises owned by the principal or occupied by those individuals;

(4)  provide normal domestic help, usual vacations and travel expenses, and funds for shelter, clothing, food, appropriate education, including postsecondary and vocational education, and other current living costs for the individuals described in subsection (1);

(5)  pay expenses for necessary health care and custodial care on behalf of the individuals described in subsection (1);

(6)  act as the principal’s personal representative pursuant to the Health Insurance Portability and Accountability Act, Sections 1171 through 1179 of the Social Security Act, 42 U.S.C. section 1320d, as amended, and applicable regulations, in making decisions related to the past, present, or future payment for the provision of health care consented to by the principal or anyone authorized under the law of this state to consent to health care on behalf of the principal;

(7)  continue any provision made by the principal for automobiles or other means of transportation, including registering, licensing, insuring, and replacing them, for the individuals described in subsection (1);

(8)  maintain credit and debit accounts for the convenience of the individuals described in subsection (1) and open new accounts; and

(9)  continue payments incidental to the membership or affiliation of the principal in a religious institution, club, society, order, or other organization or continue contributions to those organizations.

(b)  Authority with respect to personal and family maintenance is neither dependent upon, nor limited by, authority that an agent may or may not have with respect to gifts under this chapter.

564-E:214  Benefits From Governmental Programs or Civil or Military Service.

(a)  In this section, "benefits from governmental programs or civil or military service" means any benefit, program or assistance provided under a statute or regulation including Social Security, Medicare, and Medicaid.

(b)  Unless the power of attorney otherwise provides, language in a power of attorney granting general authority with respect to benefits from governmental programs or civil or military service authorizes the agent to:

(1)  execute vouchers in the name of the principal for allowances and reimbursements payable by the United States or a foreign government or by a state or subdivision of a state to the principal, including allowances and reimbursements for transportation of the individuals described in RSA 564-E:213(a)(1), and for shipment of their household effects;

(2)  take possession and order the removal and shipment of property of the principal from a post, warehouse, depot, dock, or other place of storage or safekeeping, either governmental or private, and execute and deliver a release, voucher, receipt, bill of lading, shipping ticket, certificate, or other instrument for that purpose;

(3)  enroll in, apply for, select, reject, change, amend, or discontinue, on the principal's behalf, a benefit or program;

(4)  prepare, file, and maintain a claim of the principal for a benefit or assistance, financial or otherwise, to which the principal may be entitled under a statute or regulation;

(5)  initiate, participate in, submit to alternative dispute resolution, settle, oppose, or propose or accept a compromise with respect to litigation concerning any benefit or assistance the principal may be entitled to receive under a statute or regulation; and

(6)  receive the financial proceeds of a claim described in subsection (4) and conserve, invest, disburse, or use for a lawful purpose anything so received.

564-E:215  Retirement Plans.

(a)  In this section, "retirement plan" means a plan or account created by an employer, the principal, or another individual to provide retirement benefits or deferred compensation of which the principal is a participant, beneficiary, or owner, including a plan or account under the following sections of the Internal Revenue Code:

(1)  an individual retirement account under Internal Revenue Code section 408, 26 U.S.C. section 408, as amended;

(2)  a Roth individual retirement account under Internal Revenue Code section 408A, 26 U.S.C. section 408A, as amended;

(3)  a deemed individual retirement account under Internal Revenue Code section 408(q), 26 U.S.C. section 408(q), as amended;

(4)  an annuity or mutual fund custodial account under Internal Revenue Code section 403(b), 26 U.S.C. section 403(b), as amended;

(5)  a pension, profit-sharing, stock bonus, or other retirement plan qualified under Internal Revenue Code section 401(a), 26 U.S.C. section 401(a), as amended;

(6)  a plan under Internal Revenue Code section 457(b), 26 U.S.C. section 457(b), as amended; and

(7)  a nonqualified deferred compensation plan under Internal Revenue Code section 409A, 26 U.S.C. section 409A, as amended.

(b)  Unless the power of attorney otherwise provides, language in a power of attorney granting general authority with respect to retirement plans authorizes the agent to:

(1)  select the form and timing of payments under a retirement plan and withdraw benefits from a plan;

(2)  make a rollover, including a direct trustee-to-trustee rollover, of benefits from one retirement plan to another;

(3)  establish a retirement plan in the principal's name;

(4)  make contributions to a retirement plan;

(5)  exercise investment powers available under a retirement plan; and

(6)  borrow from, sell assets to, or purchase assets from a retirement plan.

564-E:216  Taxes.  Unless the power of attorney otherwise provides, language in a power of attorney granting general authority with respect to taxes authorizes the agent to:

(1)  prepare, sign, and file federal, state, local, and foreign income, gift, payroll, property, Federal Insurance Contributions Act, and other tax returns, claims for refunds, requests for extension of time, petitions regarding tax matters, and any other tax-related documents, including receipts, offers, waivers, consents, including consents and agreements under Internal Revenue Code section 2032A, 26 U.S.C. section 2032A, as amended, closing agreements, and any power of attorney required by the Internal Revenue Service or other taxing authority with respect to a tax year upon which the statute of limitations has not run and the following 25 tax years;

(2)  pay taxes due, collect refunds, post bonds, receive confidential information, and contest deficiencies determined by the Internal Revenue Service or other taxing authority;

(3)  exercise any election available to the principal under federal, state, local, or foreign tax law; and

(4)  act for the principal in all tax matters for all periods before the Internal Revenue Service, or other taxing authority.

564-E:217  Gifts.

(a)  In this section, a "gift" for the benefit of' a person includes, without limitation, a gift to a trust, an account under the Uniform Transfers to Minors Act, and a tuition savings account or prepaid tuition plan as defined under Internal Revenue Code section 529, 26 U.S.C. section 529, as amended.

(b)  An agent may make a gift of the principal's property only as the agent determines is consistent with the principal's objectives if actually known by the agent or, if unknown, as the agent determines is consistent with the principal's best interest based on all relevant factors, including, without limitation:

(1)  evidence of the principal's intent;

(2)  the principal’s personal history of making or joining in the making of lifetime gifts;

(3)  the principal's estate plan;

(4)  the principal's foreseeable obligations and maintenance needs and the impact of the proposed gift on the principal's housing options, access to care and services, and general welfare;

(5)  the income, gift, estate or inheritance tax consequences of the transaction;

(6)  whether the proposed gift creates a foreseeable risk that the principal will be deprived of sufficient assets to cover his or her needs during any period of Medicaid ineligibility that would result from the proposed gift; and

(7)  whether the proposed gift is likely to result in premature or unnecessary nursing home placement or institutionalization of the principal, or compromise the principal's access to care or services in the least restrictive setting in which his or her needs can be met.

ARTICLE 3

STATUTORY FORMS

564-E:301  Statutory Form Power Of Attorney.  A document substantially in the following form may be used to create a power of attorney that is in compliance with the provisions of this chapter:

NEW HAMPSHIRE

STATUTORY POWER OF ATTORNEY

INFORMATION CONCERNING THE POWER OF ATTORNEY

THIS IS AN IMPORTANT LEGAL DOCUMENT.  BEFORE SIGNING THIS DOCUMENT YOU SHOULD KNOW THESE IMPORTANT FACTS:

Notice to the Principal: As the “Principal,” you are using this Power of Attorney to grant power to another person (called the “Agent”) to make decisions, including, but not limited to, decisions concerning your money, property, or both, and to use your money, property, or both on your behalf.  If this Power of Attorney does not limit the powers that you give to your Agent, your Agent will have broad and sweeping powers to sell or otherwise dispose of your property, and to spend your money without advance notice to you or approval by you.  Unless you have expressly provided otherwise in this Power of Attorney, your Agent will have these powers before you become incapacitated, and unless you have expressly provided otherwise in this Power of Attorney, your Agent will continue to have these powers after you become incapacitated.  You have the right to retain this Power of Attorney and to release it later or to request that another person retain this Power of Attorney on your behalf and release it only if one or more conditions specified in advance by you are satisfied.  You have the right to revoke or take back this Power of Attorney at any time, so long as you are of sound mind.  If there is anything about this Power of Attorney that you do not understand, you should seek professional advice.

Principal’s Signature:______________________________________

Date:__________________________________________________

1.  DESIGNATION OF AGENT

I, (Name of Principal)         , of          (Address of Principal), name the following person as my agent:

Name of Agent: _________________________________________________

Agent’s Address: _________________________________________________

2.  DESIGNATION OF SUCCESSOR AGENT(S) (OPTIONAL)

If my agent is unable or unwilling to act for me, I name the following person as my successor agent:

Name of Successor Agent: __________________________________________

Successor Agent’s Address: _________________________________________

If my successor agent is unable or unwilling to act for me, I name the following person as my second successor agent:

Name of Second Successor Agent: ________________________________________

Second Successor Agent’s Address: _______________________________________

3.  REVOCATION OF EXISTING POWERS OF ATTORNEY

(Initial the following statement if it is your choice.)

_____  This Power of Attorney revokes all existing powers of attorney previously executed by me.

4.  GRANT OF GENERAL AUTHORITY

(Initial beside your choice of A or B, but not both.)

_____  A.  I grant my agent general authority to act for me in all matters, including, without limitation, all of the subjects enumerated in B below.

_____  B.  I grant my agent general authority over the following subjects as defined in the following sections of the Uniform Power of Attorney Act:

(Initial each subject you want to include in the agent’s general authority.)

_____ Real Property as defined in RSA 564-E:204

_____ Tangible Personal Property as defined in RSA 564-E:205

_____ Stocks and Bonds as defined in RSA 564-E:206

_____ Commodities and Options as defined in RSA 564-E:207

_____ Banks and Other Financial Institutions as defined in RSA 564-E:208

_____ Operation of Entity or Business as defined in RSA 564-E:209

_____ Insurance and Annuities as defined in RSA 564-E:210

_____ Estates, Trusts and Other Beneficial Interests as defined in RSA 564-E:211

_____ Claims and Litigation as defined in RSA 564-E:212

_____ Personal and Family Maintenance as defined in RSA 564-E:213  

_____ Benefits from Governmental Programs or Civil or Military Service as defined in RSA 564-E:214

_____ Retirement Plans as defined in RSA 564-E:215

_____ Taxes as defined in RSA 564-E:216

_____ Digital Assets

5.  GRANT OF SPECIFIC AUTHORITY (OPTIONAL)

(Initial each subject you want to include in the agent’s authority.  CAUTION:  As to some of the following subjects, granting your agent authority will give your agent the authority to take actions that could significantly reduce your property or change how your property is distributed at your death.)

My agent MAY NOT do any of the following specific acts for me UNLESS I have INITIALED the specific authority listed below:

_____ Create, amend, revoke, or terminate an inter vivos trust

_____ Make a gift, subject to the limitations of RSA 564-E:217 of the Uniform Power of Attorney Act

  (If you have granted your agent the authority to make a gift, then as to each of the following statements, initial beside it if it is your choice.)

____  My agent may make a gift, even if it will leave me without sufficient assets or income to provide for my care without relying on Medicaid, other public assistance or charity.

____  My agent may make a gift to himself or herself and to any individual to whom my agent owes a legal obligation of support.

_____ Create or change rights of survivorship

_____ Create or change a beneficiary designation

_____ Delegate authority granted under this Power of Attorney to another person

_____ Waive my right to be a beneficiary of a joint and survivor annuity, including a survivor benefit under a retirement plan

_____ Exercise the fiduciary power(s) that I have the authority to delegate as specified in the “Special Instructions” in Paragraph 7 of this Power of Attorney

_____ Exercise authority over the content of electronic communication sent or received by me

_____ Exercise authority with respect to intellectual property, including, without limitation, copyrights, contracts for payment of royalties, and trademarks

6.  LIMITATION ON AGENT’S AUTHORITY (OTHER THAN GIFTING)

(If an agent (including successor agent) named in this Power of Attorney is someone other than an ancestor of yours, your spouse, or a descendant of yours, you must initial the following statement if it is your choice that such agent have the following authority.  An agent who is an ancestor of yours, your spouse, or a descendant of yours already has the following authority under New Hampshire law.)

_____ My agent may exercise authority under this Power of Attorney to create in my agent, or in an individual to whom my agent owes a legal obligation of support, an interest in my property by any manner (other than a gift), including, without limitation, by right of survivorship, beneficiary designation, or disclaimer.

7.  SPECIAL INSTRUCTIONS (OPTIONAL)

(Here you may include special instructions.  You may leave this Paragraph blank.  You may attach additional pages as necessary.)

_________________________________________________________________

8.  EFFECTIVE DATE AND AUTHORITY OF AGENT

This Power of Attorney is effective immediately unless I have stated otherwise in the Special Instructions in Paragraph 7 of this Power of Attorney.  An agent (including successor agent) named in this Power of Attorney will have no authority to act as my agent until he or she has signed and affixed to this Power of Attorney an acknowledgment that is substantially the same as the Acknowledgment at the end of this Power of Attorney.

9.  GOVERNING LAW

This Power of Attorney shall be governed by the laws of the State of New Hampshire.

10.  RELIANCE ON THIS POWER OF ATTORNEY

Any person, including my agent, may rely upon this Power of Attorney if it is acknowledged before a notary public or other individual authorized to take acknowledgements (or a copy of the acknowledged Power of Attorney), unless that person knows it is void, invalid, or terminated.

SIGNATURE AND ACKNOWLEDGMENT

(You must date and sign this Power of Attorney.  If you are physically unable to sign, it may be signed by someone else writing your name, in your presence and at your express direction.  This Power of Attorney must be acknowledged before a notary public or other individual authorized by law to take acknowledgments.)

Principal’s Signature:______________________________________

Principal's Printed Name: ____________________________________

Principal's Address: _______________________________________

Date:__________________________________________________

STATE OF NEW HAMPSHIRE

COUNTY OF _______________

The foregoing Power of Attorney was acknowledged before me on ________________, by ____________________, known to me or satisfactorily proven to be the person named herein

Signature of Notarial Officer:___________________________________________

Title (and Rank):_____________________________________________________

My commission expires:___________________________________

AGENT ACKNOWLEDGMENT

Notice to Agent:  You will have no authority to act as agent under this Power of Attorney until you sign and affix this acknowledgment to the Power of Attorney.

I, _________________________, have read the attached power of attorney and am the person identified as the agent for the principal.  I hereby acknowledge that when I act as agent I am given power under the power of attorney to make decisions about money, property, or both belonging to the principal, and to spend the principal’s money, property, or both on the principal’s behalf, in accordance with the terms of the  power of attorney.  When acting as agent, I have duties (called “fiduciary duties”) to act in the principal’s best interest, to act in good faith, and to act only within the scope of authority granted in the power of attorney, as well as other duties imposed by law to the extent not provided otherwise in the power of attorney.  As an agent, I am not entitled to use the money or property for my own benefit or to make gifts to myself or others unless the power of attorney specifically gives me the authority to do so.  As an agent, my authority under the power of attorney will end when the principal dies and I will not have authority to manage or dispose of any property or administer the estate of the principal.  If I violate a fiduciary duty under the power of attorney, I may be liable for damages and may be subject to criminal prosecution.  If there is anything about this power of attorney, or my duties under it, that I do not understand, I understand that I should seek professional advice.

Agent’s Signature:______________________________________

Date:__________________________________________________

564-E:302  Agent’s Certification.  The following optional form may be used by an agent to certify facts concerning a power of attorney:

AGENT’S CERTIFICATION AS TO THE VALIDITY OF POWER OF ATTORNEY AND AGENT’S AUTHORITY

STATE OF NEW HAMPSHIRE

COUNTY OF _______________

I,______________________________________, certify under penalty of perjury that __________________ granted me authority as an agent in a power of attorney dated ________________________________.

I further certify that to my knowledge:

(1)  the principal is alive and has not revoked the Power of Attorney or my authority to act under the Power of Attorney and the Power of Attorney and my authority to act under the Power of Attorney have not terminated;

(2)  if the Power of Attorney was drafted to become effective upon the happening of an event or contingency, the event or contingency has occurred;

(3)  if I was named as a successor agent, the prior agent is no longer able or willing to serve; and

(4)  (Insert Other Relevant Statement(s)).

SIGNATURE AND ACKNOWLEDGMENT

Agent’s Signature:______________________________________

Date:__________________________________________________

Agent’s Name Printed ____________________________________

Agent’s Address _________________________________________

Agent’s Telephone Number ________________________________

Signed and sworn to (or affirmed) before me on ________________, by ____________________, known to me or satisfactorily proven to be the person named herein

Signature of Notarial Officer:___________________________________________

Title (and Rank):_____________________________________________________

My commission expires:___________________________________

ARTICLE 4

MISCELLANEOUS PROVISIONS

564-E:401  Uniformity of Application and Construction.  In applying and construing this chapter, consideration must be given to the need to promote uniformity of the law with respect to its subject matter among the states that enact the Uniform Power of Attorney Act.

564-E:402  Relation to Electronic Signatures in Global and National Commerce Act.  This chapter modifies, limits, and supersedes the federal Electronic Signatures in Global and National Commerce Act, 15 U.S.C. section 7001 et seq., but does not modify, limit, or supersede section 101(c) of that act, 15 U.S.C. section 7001(c), or authorize electronic delivery of any of the notices described in section 103(b) of that act, 15 U.S.C. section 7003(b).

564-E:403  Effect on Existing Powers of Attorney.  Except as otherwise provided in this chapter, on the effective date of this chapter:

(1)  this chapter applies to a power of attorney created before, on, or after its effective date;

(178:178:2)  this chapter applies to a judicial proceeding concerning a power of attorney commenced on or after its effective date;

(3)  this chapter applies to a judicial proceeding concerning a power of attorney commenced before its effective date unless the court finds that application of a provision of this chapter would substantially interfere with the effective conduct of the judicial proceeding or prejudice the rights of a party, in which case that provision does not apply and the superseded law applies; and

(4)  an act done before the effective date of this chapter is not affected by this chapter.

178:2  Reference to Durable Power of Attorney Removed.  Amend RSA 137-J:15, I(b) - (d) to read as follows:

(b)  By execution by the principal of a subsequent advance directive; or

(c)  By the filing of an action for divorce, legal separation, annulment or protective order, where both the agent and the principal are parties to such action, except when there is an alternate agent designated, in which case the designation of the primary agent shall be revoked and the alternate designation shall become effective.  Re-execution or written re-affirmation of the advance directive following a filing of an action for divorce, legal separation, annulment, or protective order shall make effective the original designation of the primary agent under the advance directive[; or

(d)  By a determination by a court under RSA 506:7 that the agent's authority has been revoked].

178:3  Power of Attorney; Incompetence of Principal; Reference Removed.  Amend RSA 137-J:22, I to read as follows:

I.  The principal or any person who is a near relative of the principal, or who is a responsible adult who is directly interested in the principal by personal knowledge and acquaintance, including, but not limited to a guardian, social worker, physician, or member of the clergy, may file an action in the probate court of the county where the principal is located at the time:

(a)  Requesting that the authority granted to an agent by an advance directive be revoked on the grounds that the principal was not of sound mind or was under duress, fraud, or undue influence when the advance directive was executed, and shall have all the rights and remedies provided by [RSA 506:7] RSA 564-E:116 which shall apply to directives executed under this chapter and persons acting pursuant to this chapter.

(b)  Challenging the right of any agent who is acting or who proposes to act as such pursuant to this chapter and naming another person, who agrees to so act, to be appointed guardian over the person of the principal for the sole purpose of making health care decisions, as provided for in RSA 464-A.

178:4  Judges of Probate; Jurisdiction; Cross Reference.  Amend RSA 547:3, II(b) to read as follows:

(b)  Durable powers of attorney under [RSA 506:6 and 506:7] RSA 564-E.

178:5  Repeal.  The following are repealed:

I.  RSA 506:5, relative to powers of attorney and effect of death of principal.

II.  RSA 506:6,relative to powers of attorney and disability or incompetence of the principal.

III.  RSA 506:7 relative to powers of attorney and limitations on the agent.

178:6  Effective Date.  This act shall take effect January 1, 2018.

 

Approved: June 28, 2017

Effective Date: January 01, 2018

 

 

 

Links

SB230 at GenCourtMobile

Action Dates

Date Body Type
Feb. 14, 2017 Senate Hearing
March 16, 2017 Senate Floor Vote
March 28, 2017 House Hearing
April 25, 2017 House Exec Session
May 4, 2017 House Floor Vote

Bill Text Revisions

SB230 Revision: 1304 Date: June 29, 2017, 3:04 p.m.
SB230 Revision: 1305 Date: June 8, 2017, 8:11 a.m.
SB230 Revision: 1306 Date: May 5, 2017, 9:48 a.m.
SB230 Revision: 1307 Date: March 16, 2017, 1:40 p.m.
SB230 Revision: 1308 Date: Feb. 17, 2017, 9:20 a.m.

Docket

Date Status
Jan. 19, 2017 Introduced 01/19/2017 and Referred to Judiciary; SJ 5
Feb. 14, 2017 Hearing: 02/14/2017, Room 100, SH, 09:00 am; SC 10
March 16, 2017 Committee Report: Ought to Pass with Amendment # 2017-0771s, 03/16/2017; Vote 5-0; CC; SC 14
March 16, 2017 Committee Amendment # 2017-0771s, AA, VV; 03/16/2017; SJ 9
March 16, 2017 Ought to Pass with Amendment 2017-0771s, MA, VV; OT3rdg; 03/16/2017; SJ 9
March 9, 2017 Introduced 03/09/2017 and referred to Judiciary HJ 10 P. 77
March 28, 2017 Public Hearing: 03/28/2017 10:00 AM LOB 208
April 25, 2017 Executive Session: 04/25/2017 10:00 AM LOB 208
May 4, 2017 Majority Committee Report: Ought to Pass with Amendment # 2017-1504h for 05/04/2017 (Vote 12-3; RC) HC 22 P. 9
Minority Committee Report: Inexpedient to Legislate
May 4, 2017 Amendment # 2017-1504h: AA VV 05/04/2017 HJ 15 P. 30
May 4, 2017 Ought to Pass with Amendment 1504h: MA VV 05/04/2017 HJ 15 P. 30
May 11, 2017 Sen. Carson Moved to Concur with the House Amendment, MA, VV; 05/11/2017; SJ 16
June 1, 2017 Enrolled Bill Amendment # 2017-2030e: AA VV 06/01/2017 HJ 17 P. 148
May 31, 2017 Enrolled Bill Amendment # 2017-2030e Adopted, VV, (In recess of 05/31/2017); SJ 19
June 8, 2017 Enrolled 06/08/2017 HJ 18 P. 9
June 8, 2017 Enrolled (In recess 06/08/2017); SJ 20
Jan. 1, 2018 Signed by the Governor on 06/28/2017; Chapter 0178; Effective 01/01/2018