A Kansas durable 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 regular non-durable power of attorney (POA), a durable power of attorney (DPOA) stays in effect even if the principal becomes incapacitated and legally can’t make their own decisions. Although a durable power of attorney can’t be revoked if the principal is already incapacitated, it’s possible for a third-party individual to override a power of attorney if they suspect an agent of abuse or negligence.
Laws
In Kansas, power of attorney forms can be made durable by including one of the following sentences or similar language:
“This is a durable power of attorney and the authority of my attorney in fact shall not terminate if I become disabled or in the event of later uncertainty as to whether I am dead or alive.”
“This is a durable power of attorney and the authority of my attorney in fact, when effective, shall not terminate or be void or voidable if I am or become disabled or in the event of later uncertainty as to whether I am dead or alive.”
- Statute: § 58-650.
- Presumed Durable: No (§ 58-652).
- Signing Requirements: Signature of the principal required.
- Notarization: Notary acknowledgment required (§ 58-652).
- Statutory Form: No.
Definitions
Durable – “Durable power of attorney” means a written power of attorney in which the authority of the attorney-in-fact does not terminate in the event the principal becomes disabled or in the event of later uncertainty as to whether the principal is dead or alive and which complies with subsection (a) of KSA 58-652, and amendments thereto, or is durable under the laws of any of the following places:
- The law of the place where executed;
- the law of the place of the residence of the principal when executed; or
- the law of a place designated in the written power of attorney if that place has a reasonable relationship to the purpose of the instrument. (KSA 58-651(d))
Power of Attorney – “Attorney-in-fact” means an individual, corporation, or other legal entity appointed to act as agent of a principal in a written power of attorney (KSA 58-651(a))
Specific Powers and Limitations
When creating a Kansas durable power of attorney, it is essential to understand the specific powers and limitations that can be granted to your agent.
Restrictions on Gifts and Transfers
Understanding the restrictions on gifts and transfers that may apply to the agent’s authority is essential.
Under KSA 58-654, your agent’s authority to make gifts is limited unless the durable power of attorney explicitly grants that authority. If the DPOA grants that authority, the agent may make gifts per KSA 58-654b.
Types of Gifts
- Gifts to family members or friends;
- Charitable donations;
- Gifts to trusts or other entities;
- Gifts to pay for educational or medical expenses.
Considerations
The agent must consider various factors, including:
- The value and nature of the property being gifted.
- Foreseeable obligations and maintenance needs.
- The potential tax implications, including income, estate, inheritance, generation-skipping transfer, and gift taxes.
- Eligibility for a benefit, a program, or assistance under a statute, rule, or regulation.
- An agent cannot make gifts that surpass the estate’s value after the principal’s death unless the durable power of attorney permits it.
- Any gifts must be based on all relevant factors in the principal’s best interest if their objectives are unknown.
Revocation and Termination
The following steps should be taken to revoke or terminate a DPOA:
Step 1. Provide a written notice of revocation to the agent and any third parties relying on the DPOA. The notice should clearly state that the power of attorney is being revoked and the effective date of revocation.
Step 2. Retrieve all copies of the power of attorney document from the agent and any institutions where it was presented.
Step 3. File a written notice of modification or termination of the DPOA for record in the office of the register of deeds in the county of the principal’s residence or, if the principal is a non-resident of the state, in the county of the residence of the attorney-in-fact last known to the principal, or in the county in which is located any property specifically referred to in the DPOA.
Safekeeping and Registration
§ 58-657 outlines the following requirements and guidelines:
Safekeeping: The attorney-in-fact or agent named is responsible for safekeeping the original document. The attorney-in-fact must keep the document in a secure place and make it available for inspection upon request by the principal or any person authorized to make health care decisions for the principal.
Registration: May be registered with the register of deeds in the county where the principal resides. The registration must include:
- The name and address of the principal.
- The name and address of the attorney-in-fact.
- A description of the powers granted under the durable power of attorney.
Additional Resources
- Kansas Bar Association – A voluntary organization of lawyers that aims to promote the practice of law and improve the administration of justice.
- Kansas Legal Services – Non-profit organization that provides free legal information and services to low-income individuals and families.
- Kansas Attorney General – Chief legal officer of the state responsible for providing legal advice and representation to the state government and its agencies.
