A Hawaii durable statutory power of attorney form grants authority to a person expected to handle financial affairs, property, and assets on behalf of another person. The person who grants the power is called “the principal,” and the person who receives it is called “the agent.”
This type of power of attorney is called “durable” because it continues even if the principal becomes incapacitated and is unable to make decisions for themselves.
Laws
Power of attorney forms are durable by default.
- Statute: Title 30, Chapter 551E (Uniform Power of Attorney Act).
- Presumed Durable: Yes (§ 551E-3).
- Signing Requirements: Signature required. No witnesses.
- Notarization: The signature is presumed genuine if acknowledged before a notary public (§ 551E-3(b)).
- Statutory Form: Yes (§ 551E-51).
Definitions
Durable – “Durable” in a power of attorney context means it remains effective even if the principal becomes incapacitated (§ 551E-1).
Power of Attorney – A “power of attorney,” whether literally called that or not, is a legal document giving the agent the power to act on the principal’s behalf (§ 551E-1).
Specific Powers and Limitations
Restrictions on Gifts and Transfers
According to § 551E‑47, there are specific limitations imposed on an agent’s authority concerning gifts.
Types of Gifts:
- Gifts “for the benefit of” a person: Includes transferring assets to trusts, accounts under Chapter 553A or established under the Uniform Transfers to Minors Act, and tuition savings accounts or prepaid tuition plans.
- Outright gifts to individuals: The maximum gift amount per person (donee) is the annual federal gift tax exclusion (adjusted yearly).
- Consent to splitting gifts made by the principal’s spouse: This allows each spouse to use their individual gift tax exclusion, effectively doubling the total gift amount allowed.
Considerations:
- The agent’s decision on gifting should align with the principal’s known wishes (if any).
- Value and type of the principal’s property.
- Principal’s future needs and obligations.
- Minimizing taxes (income, estate, etc.).
- Maintaining eligibility for benefits.
- Principal’s history of gift-giving.
Agent’s Authority Limitations
According to § 551E-31, there are specific actions that require clear authorization in the DPOA. These include creating or modifying trusts, making gifts, changing ownership rights on assets, designating beneficiaries, delegating their own authority under the document, waiving the principal’s rights to certain benefits, and exercising specific financial powers.
The agent’s authority applies to all the principal’s property, regardless of location or when it was acquired. Any actions the agent takes within their authorized scope are considered the principal’s actions and are binding on them and their heirs. If different sections of the DPOA seem to contradict each other, the broadest grant of authority prevails.
Revocation and Termination
As outlined in § 551E-6, there are several ways a DPOA can end, affecting both the entire document and the agent’s authority:
- When the person who created it dies.
- When the principal revokes it.
- If the specific reason for creating it is accomplished.
- When it reaches a specific end date or condition for termination.
- If the agent dies, becomes incapacitated, or resigns, and there’s no named successor agent.
The principal can revoke just the agent’s authority while the form itself remains valid. An agent who is the principal’s spouse loses authority if they separate or divorce unless it is specified otherwise.
Even after termination, the agent and anyone acting in good faith without knowledge of the termination are protected. Their actions under the document are still considered valid and binding on the principal’s estate.
Safekeeping and Registration
Since there is currently no state-wide registry for DPOAs, the signed original should be kept in a secure location accessible to the agent but out of reach of anyone who might misuse it. Make sure both you and the agent have a copy.
Some financial institutions might have their own internal procedures for registration, so it’s best to check directly with the specific institution where the form might be used.
Additional Resources
- State Bar Association: Provides resources resources or links to related resources on powers of attorney and estate planning.
- Attorney General’s Consumer Resource Center: Related consumer protection information.
