An Alaska durable statutory power of attorney form is a document that grants someone (the “agent”) the legal authority to act and make financial decisions for another person (the “principal”).
Unlike a non-durable power of attorney, a durable power of attorney (DPOA) stays in effect even if the principal becomes incapacitated and legally can’t make their own decisions.
Laws
Power of attorney forms can be made durable by including either the following or similar language:
“This power of attorney shall become effective upon the incapacity of the principal.” / “This power of attorney shall not be affected by the subsequent incapacity of the principal.”
- Statute: Title 13, Chapter 26, Article 5 (Powers of Attorney).
- Presumed Durable: No (AK Stat § 13.26.675).
- Signing Requirements: The signature of the principal is required. No witnesses (§ 13.26.600).
- Notarization: The principal must acknowledge the signature before a notary public or other individual authorized by law.
- Statutory Form: Yes (AK Stat § 13.26.645).
Definitions
Durable – In the context of a power of attorney, ‘durable’ indicates that it remains in effect despite the principal’s incapacity (§ 13.06.050(14)).
Power of Attorney – “Power of attorney” refers to a document or written record that delegates authority to an agent to act on behalf of the principal, regardless of whether the term power of attorney is explicitly stated (AK Stat § 13.06.050).
Specific Powers and Limitations
Restrictions on Gifts and Transfers
Under AK Stat § 13.26.665, the restrictions applying to the agent’s authority concerning gifts include:
Types of Gifts:
- Gifts “for the benefit of” a person: This includes using the property to directly benefit that person by providing financial support or purchasing goods or services on their behalf.
- Outright gifts to individuals: These gifts must adhere to the annual dollar limits of the federal gift tax exclusion specified in 26 U.S.C. 2503(b) of the Internal Revenue Code.
- Consent to splitting gifts made by the principal’s spouse: Subject to certain conditions outlined in 26 U.S.C. 2513 of the Internal Revenue Code, this consent allows for the division of gifts made by the spouse between multiple recipients, ensuring that each gift does not exceed the aggregate annual gift tax exclusions for both spouses.
Considerations:
- The value and nature of the principal’s property.
- The principal’s anticipated obligations and need for maintenance.
- Reducing tax burdens, including income, estate, inheritance, generation-skipping transfer, and gift taxes.
- Eligibility for benefits, programs, or aid as per statutes or regulations.
- Tax minimization, including gift, estate, income, inheritance, and generation-skipping transfer.
- The principal’s past involvement in making gifts.
Agent’s Authority Limitations
According to AK Stat § 13.26.610, the agent’s actions are restricted to the explicit authority granted in the document. They are prohibited from acting contrary to the principal’s known preferences or best interests.
The agent must operate in good faith, avoiding conflicts of interest and prioritizing the principal’s welfare over personal gain. While delegation of tasks is permissible, the agent remains accountable for the careful selection and supervision of delegates. Furthermore, they don’t have to disclose financial information unless legally obligated or requested by authorized parties.
Revocation and Termination
A DPOA terminates under the following conditions (AK Stat § 13.26.620):
- Principal’s death.
- Explicit revocation: As long as the principal is mentally competent.
- Pre-defined termination: At a specific termination date or condition outlined in the document.
- Purpose achieved.
- Agent’s circumstances: If the agent becomes incapacitated, dies, or resigns, and there’s no successor agent named.
Safekeeping and Registration
While there isn’t a central registry for DPOAs in the state, this doesn’t mean there aren’t ways to ensure your document is safe and readily accessible when needed. Choose a secure location to store the original document, like a fireproof safe deposit box. Consider providing copies to your designated agent, a trusted family member, or your attorney.
You may choose to record a copy with the local recorder’s office in the county where you reside. While this can serve as a public record, it’s not a substitute for safekeeping the original document.
Some financial institutions may have their own internal registration systems. Contact your bank and investment firms to inquire about their specific procedures. Registration with individual institutions is entirely optional and may involve associated fees.
Additional Resources
- State Bar Association: Provides a wealth of information and related resources.
- Legal Services Corporation (ALSC): Offers legal aid services and guidance on navigating legal issues and accessing relevant resources.
- The Court System Website: Has helpful resources on powers of attorney.
Related Forms
Revocation of Power of Attorney
Signing Requirements: Notary public.
Medical Power of Attorney
Signing Requirements: Notary public or two witnesses.
Minor (Child) Power of Attorney
Signing Requirements: Notary public.
