A Mississippi 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”), even if the latter becomes incapacitated and legally can’t make their own decisions.
This form is sometimes called a general durable power of attorney and a durable power of attorney for finances and is used for financial and business matters. To grant durable power over medical decisions in Mississippi, you need a medical power of attorney.
Laws
In Mississippi, power of attorney forms can be made durable by including the following (or similar) language:
“This power of attorney shall not be affected by subsequent disability or incapacity of the principal, or lapse of time.” / “This power of attorney shall become effective upon the disability or incapacity of the principal.”
- Statute: §87-3-101 (Uniform Durable Power of Attorney Act).
- Presumed Durable: No — durability language required (§ 87-3-105).
- Signing Requirements: No.
- Notarization: It doesn’t need to be notarized.
- Statutory Form: No.
Definitions
Durable – “All acts done by an attorney in fact pursuant to a durable power of attorney during any period of disability or incapacity of the principal have the same effect and inure to the benefit of and bind the principal and his successors in interest as if the principal were competent and not disabled. Unless the instrument states a time of termination, the power is exercisable notwithstanding the lapse of time since the execution of the instrument (§ 87-3-107).”.
Power of Attorney – “A durable power of attorney is a power of attorney by which a principal designates another his attorney in fact in writing and the writing contains the words “This power of attorney shall not be affected by subsequent disability or incapacity of the principal, or lapse of time,” or “This power of attorney shall become effective upon the disability or incapacity of the principal,” or similar words showing the intent of the principal that the authority conferred shall be exercisable notwithstanding the principal’s subsequent disability or incapacity, and, unless it states a time of termination, notwithstanding the lapse of time since the execution of the instrument” (§ 87-3-105).
Specific Powers and Limitations
Restrictions on Gifts and Transfers in Mississippi
Types of Gifts:
- Outright Gifts: An agent can make direct gifts on behalf of the principal, adhering to federal tax exemptions. Annually, the IRS allows a certain amount per recipient that can be gifted without tax implications.
- For the Benefit of Another: Gifts intended for the benefit of another, such as contributions to a child’s education fund or a 529 plan, are permissible. The agent must ensure these gifts align with the principal’s wishes and do not adversely affect the principal’s financial situation or eligibility for benefits.
- Gift Splitting: Mississippi allows gift splitting where the principal’s spouse can consent to jointly make a larger gift, staying within the tax exemption limits.
Considerations:
- The principal’s estate plan
- Tax implications
- Potential effects on eligibility for government benefits, such as Medicaid, when making gifts.
Agent’s Authority Limitations:
Mississippi law specifies that the scope of an agent’s authority is defined by the Durable Power of Attorney document. Key limitations often include:
- Prohibition against altering the principal’s will.
- Restrictions on voting in public elections on behalf of the principal.
- Inability to make health care decisions, which generally require a separate Health Care Power of Attorney.
If the agent is not a close family member, they are typically prohibited from benefiting themselves with the principal’s assets, making significant gifts to themselves, or altering beneficiary designations to their advantage.
Revocation and Termination
As per § 87-3-111, a Durable Power of Attorney remains in effect until:
- The principal revokes it, which must be done in writing and communicated to the agent and any third parties acting under the DPOA.
- The principal’s death.
- The principal becomes incapacitated, if the DPOA does not explicitly state it is durable.
- The expiration of a term specified in the document.
- Divorce or annulment, if the agent is the spouse, unless stated otherwise.
Safekeeping and Registration
Mississippi does not offer a statewide registry for Durable Powers of Attorney. It’s advised to keep the original document in a secure location and provide copies to the appointed agent, family members, and relevant institutions.
Additional Resources:
- Legal Services in Mississippi: Mississippi Center for Legal Services provides legal aid for individuals seeking assistance with civil matters.
