An Indiana durable power of attorney form is a legal document that allows an individual (“the principal”) to designate another person (“the agent”) to make decisions on their behalf. Under state law, the agent can primarily make financial decisions during the principal’s lifetime and in case they become incapacitated.
Laws
In Indiana, power of attorney forms are durable by default.
- Statute: § 30-5-1-1 (Powers of Attorney).
- Presumed Durable: Yes — durability presumed (§ 30-5-10-3).
- Signing Requirements: Requires signature of principal in the presence of a notary public (§ 30-5-4-1).
- Notarization: Yes, notarization is required. Notarization is not necessary if the document is signed in the presence of 2 witnesses.
- Statutory Form: No.
Definitions
Power of attorney – Grants authority to an agent or attorney in fact. It refers to all types of powers of attorney except for three specific types: (1) a power linked to an interest in the subject matter, (2) a proxy or delegation for voting or management rights, and (3) a power created on a government form for a governmental purpose. (Full definition § 30-5-2-7)
Specific Powers and Limitations
When creating an Indiana durable power of attorney, it is essential to understand the specific powers you can grant to your agent and the limitations on those powers.
Restrictions on Gifts and Transfers
According to § 30-5-5-9, certain restrictions apply to the agent’s authority concerning gifts.
Types of Gifts
- Gifts to individuals: The agent has the authority to make gifts to an individual or a trust for the benefit of an individual as long as the permissible amount does not exceed the annual federal gift tax exclusion under Internal Revenue Code Section 2503(b). Additionally, the agent may not make any gifts in excess of the principal’s remaining estate after death unless the DPOA expressly authorizes such gifts.
- Gifts to charitable organizations: If specifically authorized, the agent may make gifts to charitable organizations.
- Transfers to trusts: If such transfers are specifically authorized, the agent may transfer the principal’s property into a trust. The trust must be revocable by the principal unless the document authorizes explicitly an irrevocable trust.
- Other types of gifts: The DPOA can allow the agent to make various types of gifts, including gifts to organizations, fulfilling pledges made to organizations, making gifts to the principal’s family members, and preparing necessary documents for gift transactions. Additionally, the attorney-in-fact can perform any other acts deemed necessary to complete a gift on behalf of the principal.
Considerations:
- The document must expressly authorize the agent’s authority to make gifts.
- Must act in the principal’s best interests and follow the principal’s known desires and objectives.
- The agent must consider the following factors when making gifts:
- The value and nature of the property
- The principal’s foreseeable obligations and maintenance needs
- The principal’s personal history of making or joining in making gifts
- The potential tax implications.
Agent’s Authority
A principal, parent, or de facto custodian may nominate a guardian in a power of attorney for consideration by the court in protective proceedings. A guardian cannot revoke or amend a valid power of attorney unless directed by a court. Notice of a hearing must be given to the attorney-in-fact. (§ 30-5-3-4)
Revocation and Termination
Steps Needed to Revoke
According to § 30-5-10, the attorney-in-fact can exercise a power of attorney in Indiana until it’s terminated. Revocation requires a written instrument signed by the principal and is only effective if the attorney-in-fact has actual knowledge of it.
Step 1. Provide a written notice of revocation to the agent and any third parties acting under the power.
Step 2. Retrieve all copies of the document from the agent and any institutions where it was presented.
Step 3. If registered or recorded with any government office (e.g., for real estate transactions), file the revocation notice with the same office.
Considerations
- Does not terminate automatically in case of the incapacity of the principal, unless specified otherwise in the power of attorney.
- The death of the principal doesn’t terminate unless specified otherwise.
- Terminated automatically if the United States Department of Defense provides notice of the principal’s death.
- A report or listing of the principal’s missing or missing in action doesn’t constitute actual notice of the principal’s death or terminate the power of attorney.
Cost Considerations
Notary fees: Notarization of the revocation is mandatory, with costs ranging from $10 per signature.
Recording fees: If the original document was recorded, the revocation should be, too, for $25 to $50, depending on the county.
Safekeeping and Registration
Indiana does not have a statewide registry for durable powers of attorney. Therefore, the principal must keep the original document in a safe, accessible location and inform trusted individuals, such as family members or an attorney, of its location.
Additional Resources
- Indiana State Bar Association – A voluntary organization of lawyers that aims to promote the practice of law and improve the administration of justice.
- Indiana Legal Services – Non-profit organization that provides free legal information and services to low-income individuals and families.
- Legal Aid Society of Evansville – A non-profit organization that provides free legal services to low-income individuals and families in the Evansville area.
- Indiana Attorney General – Chief legal officer of the state and is responsible for providing legal advice and representation to the state government and its agencies.
