Wills, Trusts & Estates Prof Blog

Editor: Gerry W. Beyer
Texas Tech Univ. School of Law

Wednesday, April 4, 2018

Article on Powers of Attorney Under the Uniform Power of Attorney Act Including Reference to Virginia Law

image from https://s3.amazonaws.com/feather-client-files-aviary-prod-us-east-1/2018-04-04/88f82d62-6b7b-4cb0-955b-ead53c710317.pngF. Philip Manns, Jr. published an Article entitled, Powers of Attorney Under the Uniform Power of Attorney Act Including Reference to Virginia Law, 43 ACTEC L.J. 151 (2018). Provided below is an abstract of the Article:

The Uniform Power of Attorney Act (UPOAA), approved in 2006, slightly amended in 2008 and more significantly amended in 2016, has been adopted by 27 U.S. jurisdictions. The UPOAA promotes uniformity in language delineating an agent's powers and mandates that third parties accept notarized powers of attorney. Under the UPOAA, an instrument simply granting an agent authority to do “all acts that a principal could do,” vests that agent with broad powers: the precise delineation of those powers is produced by about a dozen pages of UPOAA text automatically incorporated by reference into such “all acts” instruments. However, the UPOAA expressly excludes from such “all acts” agents nine powers, six of which relate to acts that could dissipate the principal's property, two of which relate to delegation of authority, and the ninth of which relates to the “content of electronic communications.” Those nine, so-called “hot” powers, are granted to an agent only when the instrument “expressly grants” them.

Five problematic areas exist within the UPOAA: (1) internal conflict within the UPOAA after its 2016 amendments regarding agent access to the content of the principal's electronic communications; (2) a failure automatically to grant incidental powers to any hot powers expressly granted; (3) a missing modifier in the section concerning an agent's authority to make gifts; (4) a missing good faith requirement in the agent certification rule; and (5) overlap among the ostensibly distinct hot powers.

Virginia's adoption of the UPOAA included about two-dozen changes to the uniform text, nine of which are particularly important: (1) the cold gifting power; (2) the gutting of the primary consumer protection of the UPOAA; (3) the reversal of the forged signature rule; (4) the negation of provisions conditioning effectiveness upon delivery of the instrument to *152 the agent; (5) the expanded agent disclosure rule; (6) the agent's creation and amendment of trusts; (7) the rule of presumed non-ademption; (8) the legally irrelevant failure to adopt the UPOAA Statutory Form Power of Attorney; and (9) the curious change to the definition of “incapacity.” Some of those changes are inexplicable; others are misguided.

Regarding agency law doctrines not particularly addressed by the UPOAA, but obviously affected by it, the UPOAA reverses the century-old Virginia rule of strict construction for powers of attorney, and that will expose irreconcilable conflicts between (1) two Virginia Supreme Court cases stating opposite rules regarding the evidentiary presumption placed upon self-dealing agents, and (2) two Virginia Supreme Court cases reaching opposite conclusions on nearly identical facts for agents who made gifts to themselves of the principal's property. Thus, courts soon will confront the consequences of the UPOAA and its effect upon various aspects of agency law.


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