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S1335................................................by JUDICIARY AND RULES
UNIFORM POWER OF ATTORNEY ACT - Adds to existing law to enact the Uniform
Power of Attorney Act.
01/22 Senate intro - 1st rdg - to printing
01/23 Rpt prt - to Jud
02/05 Rpt out - rec d/p - to 2nd rdg
02/06 2nd rdg - to 3rd rdg
02/08 3rd rdg - PASSED - 33-0-2
AYES -- Andreason, Bair, Bastian, Bilyeu, Broadsword, Burkett,
Cameron, Coiner, Corder, Darrington, Fulcher, Gannon, Geddes, Goedde,
Hammond, Heinrich, Hill, Kelly, Keough, Langhorst, Little, Lodge,
Malepeai(Sagness), McGee, McKague, McKenzie, Pearce, Richardson,
Schroeder, Siddoway, Stegner, Stennett, Werk
NAYS -- None
Absent and excused -- Davis, Jorgenson
Floor Sponsor - Darrington
Title apvd - to House
02/11 House intro - 1st rdg - to Jud
03/11 Rpt out - rec d/p - to 2nd rdg
03/12 2nd rdg - to 3rd rdg
03/13 3rd rdg - PASSED - 45-19-6
AYES -- Anderson, Bayer, Black, Block, Bock, Boe, Bolz, Bradford,
Chadderdon, Chavez, Chew, Collins, Crane, Durst, Eskridge, Harwood,
Henbest, Henderson, Jaquet, Killen, King, Kren, Labrador, LeFavour,
Mathews, Nielsen, Pasley-Stuart, Pence, Raybould, Ringo, Ruchti,
Rusche, Sayler, Shepherd(02), Shirley, Shively, Smith(30), Smith(24),
Snodgrass, Stevenson, Thomas, Trail, Wills, Wood(27), Mr. Speaker
NAYS -- Andrus, Barrett, Bedke, Bell, Bowers, Brackett, Hagedorn,
Hart, Lake, Loertscher, Luker, Marriott, McGeachin, Mortimer,
Roberts, Shepherd(08), Thayn, Vander Woude, Wood(35)
Absent and excused -- Bilbao, Clark, Moyle, Nonini, Patrick, Schaefer
Floor Sponsor - LeFavour
Title apvd - to Senate
03/14 To enrol
03/17 Rpt enrol - Pres signed - Sp signed
03/18 To Governor
03/18 Governor signed
Session Law Chapter 186
Effective: 07/01/08
]]]] LEGISLATURE OF THE STATE OF IDAHO ]]]] Fifty-ninth Legislature Second Regular Session - 2008IN THE SENATE SENATE BILL NO. 1335 BY JUDICIARY AND RULES COMMITTEE 1 AN ACT 2 RELATING TO THE UNIFORM POWER OF ATTORNEY ACT; REPEALING PART 5, CHAPTER 5, 3 TITLE 15, IDAHO CODE, RELATING TO POWERS OF ATTORNEY; AMENDING TITLE 15, 4 IDAHO CODE, BY THE ADDITION OF A NEW CHAPTER 12, TITLE 15, IDAHO CODE, TO 5 PROVIDE A SHORT TITLE, TO DEFINE TERMS, TO PROVIDE FOR APPLICABILITY, TO 6 PROVIDE FOR DURABILITY OF POWER OF ATTORNEY, TO PROVIDE FOR EXECUTION OF 7 POWER OF ATTORNEY, TO PROVIDE FOR VALIDITY OF POWER OF ATTORNEY, TO PRO- 8 VIDE FOR MEANING AND EFFECT OF POWER OF ATTORNEY, TO PROVIDE FOR NOMINA- 9 TION OF CONSERVATOR AND FOR RELATION OF AGENT TO COURT-APPOINTED FIDU- 10 CIARY, TO PROVIDE FOR WHEN POWER OF ATTORNEY IS EFFECTIVE, TO PROVIDE FOR 11 TERMINATION OF POWER OF ATTORNEY OR AGENT'S AUTHORITY, TO PROVIDE FOR 12 COAGENTS AND SUCCESSOR AGENTS, TO PROVIDE FOR REIMBURSEMENT AND COMPENSA- 13 TION OF AGENT, TO PROVIDE FOR AGENT'S ACCEPTANCE, TO PROVIDE FOR AGENT'S 14 DUTIES, TO PROVIDE FOR EXONERATION OF AGENT, TO PROVIDE FOR JUDICIAL 15 RELIEF, TO PROVIDE FOR AGENT'S LIABILITY, TO PROVIDE FOR AGENT'S RESIGNA- 16 TION AND FOR NOTICE, TO PROVIDE FOR ACCEPTANCE OF AND RELIANCE UPON AN 17 ACKNOWLEDGED POWER OF ATTORNEY, TO PROVIDE LIABILITY FOR REFUSAL TO ACCEPT 18 AN ACKNOWLEDGED POWER OF ATTORNEY, TO PROVIDE FOR PRINCIPLES OF LAW AND 19 EQUITY, TO PROVIDE FOR LAWS APPLICABLE TO FINANCIAL INSTITUTIONS AND ENTI- 20 TIES, TO PROVIDE FOR REMEDIES UNDER OTHER LAW, TO PROVIDE FOR AUTHORITY 21 THAT REQUIRES SPECIFIC GRANT AND FOR GRANT OF GENERAL AUTHORITY, TO PRO- 22 VIDE FOR INCORPORATION OF AUTHORITY, TO PROVIDE FOR CONSTRUCTION OF 23 AUTHORITY GENERALLY, TO PROVIDE FOR AUTHORITY REGARDING REAL PROPERTY, TO 24 PROVIDE FOR AUTHORITY REGARDING TANGIBLE PERSONAL PROPERTY, TO PROVIDE FOR 25 AUTHORITY REGARDING STOCKS AND BONDS, TO PROVIDE FOR AUTHORITY REGARDING 26 COMMODITIES AND OPTIONS, TO PROVIDE FOR AUTHORITY REGARDING BANKS AND 27 OTHER FINANCIAL INSTITUTIONS, TO PROVIDE FOR AUTHORITY REGARDING OPERATION 28 OF AN ENTITY OR BUSINESS, TO PROVIDE FOR AUTHORITY REGARDING INSURANCE AND 29 ANNUITIES, TO PROVIDE FOR AUTHORITY REGARDING ESTATES, TRUSTS AND OTHER 30 BENEFICIAL INTERESTS, TO PROVIDE FOR AUTHORITY REGARDING CLAIMS AND LITI- 31 GATION, TO PROVIDE FOR AUTHORITY REGARDING PERSONAL AND FAMILY MAINTE- 32 NANCE, TO PROVIDE FOR AUTHORITY REGARDING BENEFITS FROM GOVERNMENTAL PRO- 33 GRAMS OR CIVIL OR MILITARY SERVICE, TO PROVIDE FOR AUTHORITY REGARDING 34 RETIREMENT PLANS, TO PROVIDE FOR AUTHORITY REGARDING TAXES, TO PROVIDE FOR 35 AUTHORITY REGARDING GIFTS, TO PROVIDE FOR STATUTORY FORM POWER OF ATTOR- 36 NEY, TO PROVIDE FOR AGENT'S CERTIFICATION FORM, TO PROVIDE FOR UNIFORMITY 37 OF APPLICATION AND CONSTRUCTION, TO PROVIDE FOR RELATION TO THE ELECTRONIC 38 SIGNATURES IN GLOBAL AND NATIONAL COMMERCE ACT AND TO PROVIDE FOR EFFECT 39 ON EXISTING POWERS OF ATTORNEY; AND AMENDING SECTION 54-1142, IDAHO CODE, 40 TO PROVIDE A CORRECT CODE REFERENCE. 41 Be It Enacted by the Legislature of the State of Idaho: 42 SECTION 1. That Part 5, Chapter 5, Title 15, Idaho Code, be, and the same 43 is hereby repealed. 2 1 SECTION 2. That Title 15, Idaho Code, be, and the same is hereby amended 2 by the addition thereto of a NEW CHAPTER, to be known and designated as Chap- 3 ter 12, Title 15, Idaho Code, and to read as follows: 4 CHAPTER 12 5 UNIFORM POWER OF ATTORNEY ACT 6 PART 1. 7 GENERAL PROVISIONS AND DEFINITIONS 8 15-12-101. SHORT TITLE. This chapter may be known and cited as the 9 "Uniform Power of Attorney Act." 10 15-12-102. DEFINITIONS. In this chapter: 11 (1) "Agent" means a person granted authority to act for a principal under 12 a power of attorney, whether denominated an agent, attorney-in-fact, or other- 13 wise. The term includes an original agent, coagent, successor agent or a per- 14 son to which an agent's authority is delegated. 15 (2) "Durable" with respect to a power of attorney means not terminated by 16 the principal's incapacity. 17 (3) "Electronic" means relating to technology having electrical, digital, 18 magnetic, wireless, optical, electromagnetic or similar capabilities. 19 (4) "Good faith" means honesty in fact. 20 (5) "Incapacity" means inability of an individual to manage property or 21 business affairs because: 22 (a) The individual has an impairment in the ability to receive and evalu- 23 ate information or make or communicate decisions even with the use of 24 technological assistance; or 25 (b) The individual is: 26 (i) Missing; 27 (ii) Detained, including incarcerated in a penal system; or 28 (iii) Outside the United States and unable to return. 29 (6) "Person" means an individual, corporation, business trust, estate, 30 trust, partnership, limited liability company, association, joint venture, 31 public corporation, government or governmental subdivision, agency or instru- 32 mentality, or any other legal or commercial entity. 33 (7) "Power of attorney" means a writing or other record which grants 34 authority to an agent to act in the place of the principal, whether or not the 35 term power of attorney is used. 36 (8) "Presently exercisable general power of appointment" with respect to 37 the property or property interest subject to the power means that the power is 38 exercisable at the time in question to vest absolute ownership in the princi- 39 pal individually, the principal's estate, the principal's creditors, or the 40 creditors of the principal's estate. The term includes a power of appointment 41 that is not exercisable until the occurrence of a specified event, the satis- 42 faction of an ascertainable standard, or the passage of a specified period 43 only after the occurrence of the specified event, the satisfaction of the 44 ascertainable standard, or the passage of the specified period. The term does 45 not include a power exercisable in a fiduciary capacity or only by will. 46 (9) "Principal" means an individual who grants authority to an agent in a 47 power of attorney. 48 (10) "Property" means anything that may be the subject of ownership, 49 whether real or personal, or legal or equitable, or any interest or right 50 therein. 51 (11) "Record" means information that is inscribed on a tangible medium or 3 1 that is stored in an electronic or other medium and is retrievable in 2 perceivable form. 3 (12) "Sign" means, with present intent to authenticate or adopt a record: 4 (a) To execute or adopt a tangible symbol; or 5 (b) To attach to or logically associate with the record an electronic 6 sound, symbol or process. 7 (13) "State" means a state of the United States, the District of Columbia, 8 Puerto Rico, United States Virgin Islands or any territory or insular posses- 9 sion subject to the jurisdiction of the United States. 10 (14) "Stocks and bonds" means stocks, bonds, mutual funds and all other 11 types of securities and financial instruments, whether held directly, indi- 12 rectly, or in any other manner, except commodity futures contracts and call 13 and put options on stocks and stock indexes. 14 15-12-103. APPLICABILITY. This chapter applies to all powers of attorney 15 except: 16 (1) A power to the extent it is coupled with an interest in the subject 17 of the power, including, but not limited to, a power given to or for the bene- 18 fit of a creditor in connection with a credit transaction; 19 (2) A power to make health care decisions; 20 (3) A proxy or other delegation to exercise voting rights or management 21 rights with respect to an entity; and 22 (4) A power created on a form prescribed by a government or governmental 23 subdivision, agency or instrumentality for a governmental purpose. 24 15-12-104. POWER OF ATTORNEY IS DURABLE. A power of attorney created 25 under this chapter is durable unless it expressly provides that it is termi- 26 nated by the incapacity of the principal. 27 15-12-105. EXECUTION OF POWER OF ATTORNEY. A power of attorney must be 28 signed by the principal or in the principal's conscious presence by another 29 individual directed by the principal to sign the principal's name on the power 30 of attorney, including as set forth in section 73-114, Idaho Code. The signa- 31 ture is presumed to be genuine if the principal acknowledges the signature 32 before a notary public or other individual authorized to take acknowledgments, 33 including as set forth in section 51-109(6), Idaho Code, or section 55-712B, 34 Idaho Code. 35 15-12-106. VALIDITY OF POWER OF ATTORNEY. (1) A power of attorney exe- 36 cuted in this state on or after the effective date of this chapter is valid if 37 its execution complies with section 15-12-105, Idaho Code. 38 (2) A power of attorney executed in this state before the effective date 39 of this chapter is valid if its execution complied with the law of this state 40 as it existed at the time of execution. 41 (3) A power of attorney executed other than in this state is valid in 42 this state if, when the power of attorney was executed, the execution complied 43 with: 44 (a) The law of the jurisdiction that determines the meaning and effect of 45 the power of attorney pursuant to section 15-12-107, Idaho Code; or 46 (b) The requirements for a military power of attorney pursuant to 10 47 U.S.C. section 1044b, as amended. 48 (4) Except as otherwise provided by statute other than this chapter, a 49 photocopy or electronically transmitted copy of an original power of attorney 50 has the same effect as the original. 4 1 15-12-107. MEANING AND EFFECT OF POWER OF ATTORNEY. The meaning and 2 effect of a power of attorney is determined by the law of the jurisdiction 3 indicated in the power of attorney and, in the absence of an indication of 4 jurisdiction, by the law of the jurisdiction in which the power of attorney 5 was executed. 6 15-12-108. NOMINATION OF CONSERVATOR; RELATION OF AGENT TO COURT-AP- 7 POINTED FIDUCIARY. (1) In a power of attorney, a principal may nominate a con- 8 servator of the principal's estate for consideration by the court if protec- 9 tive proceedings for the principal's estate are thereafter commenced. 10 (2) If, after a principal executes a power of attorney, a court appoints 11 a conservator of the principal's estate or other fiduciary charged with the 12 management of some or all of the principal's property, the agent is account- 13 able to the fiduciary as well as to the principal. The power of attorney is 14 not terminated and the agent's authority continues unless limited, suspended 15 or terminated by the court. 16 15-12-109. WHEN POWER OF ATTORNEY EFFECTIVE. (1) A power of attorney is 17 effective when executed unless the principal provides in the power of attorney 18 that it is to become effective at a future date or upon the occurrence of a 19 future event or contingency. 20 (2) If a power of attorney is to become effective upon the occurrence of 21 a future event or contingency, the principal, in the power of attorney, may 22 authorize one (1) or more persons to determine in a writing or other record 23 that the event or contingency has occurred. 24 (3) If a power of attorney is to become effective upon the principal's 25 incapacity and the principal has not authorized a person to determine whether 26 the principal is incapacitated, or the person authorized is unable or unwill- 27 ing to make the determination, the power of attorney becomes effective upon a 28 determination in a writing or other record by: 29 (a) A physician or licensed psychologist that the principal is incapaci- 30 tated within the meaning of section 15-12-102(5)(a), Idaho Code; or 31 (b) A licensed attorney at law, judge or appropriate governmental offi- 32 cial that the principal is incapacitated within the meaning of section 33 15-12-102(5)(b), Idaho Code. 34 (4) A person authorized by the principal in the power of attorney to 35 determine that the principal is incapacitated may act as the principal's per- 36 sonal representative as defined in, and pursuant to, the health insurance por- 37 tability and accountability act, sections 1171 through 1179 of the social 38 security act, 42 U.S.C. section 1320d through 1320d-8, as amended, and appli- 39 cable regulations, to obtain access to the principal's health care information 40 and communicate with the principal's health care provider. 41 15-12-110. TERMINATION OF POWER OF ATTORNEY OR AGENT'S AUTHORITY. (1) A 42 power of attorney terminates when: 43 (a) The principal dies; 44 (b) The principal becomes incapacitated, if the power of attorney is not 45 durable; 46 (c) The principal revokes the power of attorney; 47 (d) The power of attorney provides it terminates; 48 (e) The purpose of the power of attorney is accomplished; or 49 (f) The principal revokes the agent's authority or the agent dies, 50 becomes incapacitated, or resigns, and the power of attorney does not pro- 51 vide for another agent to act under the power of attorney. 52 (2) An agent's authority terminates when: 5 1 (a) The principal revokes the agent's authority; 2 (b) The agent dies, becomes incapacitated or resigns; 3 (c) An action is filed for the dissolution or annulment of the agent's 4 marriage to the principal or their legal separation, unless the power of 5 attorney otherwise provides; or 6 (d) The power of attorney terminates. 7 (3) Unless the power of attorney otherwise provides, an agent's authority 8 is exercisable until the power of attorney terminates, notwithstanding a lapse 9 of time since the execution of the power of attorney. 10 (4) Termination of an agent's authority or of a power of attorney is not 11 effective as to the agent or another person that, without actual knowledge of 12 the termination, acts in good faith under the power of attorney. An act so 13 performed, unless otherwise invalid or unenforceable, binds the principal and 14 the principal's successors in interest. 15 (5) Incapacity of the principal of a power of attorney that is not dura- 16 ble does not revoke or terminate the power of attorney as to an agent or other 17 person that, without actual knowledge of the incapacity, acts in good faith 18 under the power of attorney. An act so performed, unless otherwise invalid or 19 unenforceable, binds the principal and the principal's successors in interest. 20 (6) The execution of a power of attorney does not revoke a power of 21 attorney previously executed by the principal unless the subsequent power of 22 attorney provides that the previous power of attorney is revoked or that all 23 other powers of attorney are revoked. 24 15-12-111. COAGENTS AND SUCCESSOR AGENTS. (1) A principal may designate 25 two (2) or more persons to act as coagents. Unless a power of attorney other- 26 wise provides, each coagent may exercise its authority independently. 27 (2) A principal may designate one (1) or more successor agents to act if 28 an agent resigns, dies, becomes incapacitated, is not qualified to serve, or 29 declines to serve, including a successor coagent. A principal may grant to an 30 agent or other person designated by name, office or function, authority to 31 designate one (1) or more successor agents, including a successor coagent. 32 Unless a power of attorney otherwise provides, a successor agent: 33 (a) Has the same authority as that granted to the original agent; and 34 (b) May not act until all predecessor agents have resigned, died, become 35 incapacitated, are no longer qualified to serve, or have declined to 36 serve. 37 (3) Except as otherwise provided in the power of attorney and subsection 38 (4) of this section, an agent that does not participate in or conceal a breach 39 of fiduciary duty committed by another agent, including a predecessor agent, 40 is not liable for the actions of the other agent. 41 (4) An agent that has actual knowledge of a breach or imminent breach of 42 fiduciary duty by another agent shall notify the principal and, if the princi- 43 pal is incapacitated, take any action reasonably appropriate in the circum- 44 stances to safeguard the principal's best interest. An agent that fails to 45 notify the principal or take action as required by this subsection is liable 46 for the reasonably foreseeable damages that could have been avoided if the 47 agent had notified the principal or taken such action. 48 15-12-112. REIMBURSEMENT AND COMPENSATION OF AGENT. Unless the power of 49 attorney otherwise provides, an agent is entitled to reimbursement of expenses 50 reasonably incurred on behalf of the principal and to compensation that is 51 reasonable under the circumstances. 52 15-12-113. AGENT'S ACCEPTANCE. Except as otherwise provided in the power 6 1 of attorney, a person accepts appointment as an agent under a power of attor- 2 ney by exercising authority or performing duties as an agent or by any other 3 assertion or conduct indicating acceptance. 4 15-12-114. AGENT'S DUTIES. (1) Notwithstanding provisions in a power of 5 attorney, an agent that has accepted appointment shall: 6 (a) Act in accordance with the principal's reasonable expectations to the 7 extent actually known by the agent and, otherwise, in the principal's best 8 interest; 9 (b) Act in good faith; and 10 (c) Act only within the scope of authority granted in the power of attor- 11 ney. 12 (2) Except as otherwise provided in the power of attorney, an agent that 13 has accepted appointment shall: 14 (a) Act loyally for the principal's benefit; 15 (b) Act so as not to create a conflict of interest that impairs the 16 agent's ability to act impartially in the principal's best interest; 17 (c) Act with the care, competence and diligence ordinarily exercised by 18 agents in similar circumstances; 19 (d) Keep a record of all receipts, disbursements and transactions made on 20 behalf of the principal; 21 (e) Cooperate with a person that has authority to make health care deci- 22 sions for the principal to carry out the principal's reasonable 23 expectations to the extent actually known by the agent and, otherwise, act 24 in the principal's best interest; and 25 (f) Attempt to preserve the principal's estate plan, to the extent actu- 26 ally known by the agent, if preserving the plan is consistent with the 27 principal's best interest based on all relevant factors, including: 28 (i) The value and nature of the principal's property; 29 (ii) The principal's foreseeable obligations and need for mainte- 30 nance; 31 (iii) Minimization of taxes, including income, estate, inheritance, 32 generation-skipping transfer and gift taxes; and 33 (iv) Eligibility for a benefit, a program or assistance under a 34 statute or governmental regulation. 35 (3) An agent that acts in good faith is not liable to any beneficiary of 36 the principal's estate plan for failure to preserve the plan. 37 (4) An agent that acts with care, competence and diligence for the best 38 interest of the principal is not liable solely because the agent also benefits 39 from the act or has an individual or conflicting interest in relation to the 40 property or affairs of the principal. 41 (5) If an agent is selected by the principal because of special skills or 42 expertise possessed by the agent, or in reliance on the agent's representation 43 that the agent has special skills or expertise, the special skills or exper- 44 tise must be considered in determining whether the agent has acted with care, 45 competence and diligence under the circumstances. 46 (6) Absent a breach of duty to the principal, an agent is not liable if 47 the value of the principal's property declines. 48 (7) An agent that exercises authority to delegate to another person the 49 authority granted by the principal or that employs another person on behalf of 50 the principal is not liable for an act, error of judgment or default of that 51 person if the agent exercises care, competence and diligence in selecting and 52 monitoring the person. 53 (8) Except as otherwise provided in the power of attorney, an agent is 54 not required to disclose receipts, disbursements or transactions conducted on 7 1 behalf of the principal unless ordered by a court or requested by the princi- 2 pal, a guardian, conservator, other fiduciary acting for the principal, a gov- 3 ernmental agency having authority to protect the welfare of the principal or, 4 upon the death of the principal, by the personal representative or successor 5 in interest of the principal's estate. If so requested, the agent shall comply 6 with the request within thirty (30) days or provide a writing or other record 7 substantiating why additional time is needed and shall comply with the request 8 within an additional thirty (30) days. 9 15-12-115. EXONERATION OF AGENT. A provision in a power of attorney 10 relieving the agent of liability for breach of duty is binding on the princi- 11 pal and the principal's successors in interest except to the extent the provi- 12 sion: 13 (1) Relieves the agent of liability for breach of duty committed dishon- 14 estly, with an improper motive, or with reckless indifference to the purposes 15 of the power of attorney or the best interest of the principal; or 16 (2) Was inserted as a result of an abuse of a confidential or fiduciary 17 relationship with the principal. 18 15-12-116. JUDICIAL RELIEF. (1) The following persons may petition a 19 court to construe a power of attorney or review the agent's conduct, and grant 20 appropriate relief: 21 (a) The principal or the agent; 22 (b) A guardian, conservator or other fiduciary acting for the principal; 23 (c) A person authorized to make health care decisions for the principal; 24 (d) The principal's spouse, parent or descendant; 25 (e) An individual who would qualify as a presumptive heir of the princi- 26 pal; 27 (f) A person named as a beneficiary to receive any property, benefit or 28 contractual right on the principal's death or as a beneficiary of a trust 29 created by or for the principal that has a financial interest in the 30 principal's estate; 31 (g) A governmental agency having regulatory authority to protect the wel- 32 fare of the principal; 33 (h) The principal's caregiver or another person that demonstrates suffi- 34 cient interest in the principal's welfare; and 35 (i) A person asked to accept the power of attorney. 36 (2) Upon motion by the principal, the court shall dismiss a petition 37 filed under this section, unless the court finds that the principal lacks 38 capacity to revoke the agent's authority or the power of attorney. 39 (3) The court may award reasonable attorney's fees and costs to the pre- 40 vailing party in a proceeding under this section. 41 15-12-117. AGENT'S LIABILITY. An agent that violates this chapter is lia- 42 ble to the principal or the principal's successors in interest for the amount 43 required to: 44 (1) Restore the value of the principal's property to what it would have 45 been had the violation not occurred; and 46 (2) Reimburse the principal or the principal's successors in interest for 47 the attorney's fees and costs, and other professional fees and costs, paid on 48 the agent's behalf. 49 15-12-118. AGENT'S RESIGNATION -- NOTICE. If a power of attorney does not 50 provide the method for an agent's resignation, an agent may resign by giving 51 written notice to the principal and, if the principal is incapacitated: 8 1 (1) To the conservator or guardian, if one (1) has been appointed for the 2 principal, and a coagent or successor agent; or 3 (2) If there is no person described in subsection (1) of this section, 4 to: 5 (a) The principal's caregiver; 6 (b) Another person reasonably believed by the agent to have sufficient 7 interest in the principal's welfare; or 8 (c) A governmental agency having authority to protect the welfare of the 9 principal. 10 15-12-119. ACCEPTANCE OF AND RELIANCE UPON AN ACKNOWLEDGED POWER OF 11 ATTORNEY. (1) For purposes of this section and section 15-12-120, Idaho Code, 12 "acknowledged" means purportedly verified before a notary public or other 13 individual authorized to take acknowledgments. 14 (2) A person that in good faith accepts an acknowledged power of attorney 15 without actual knowledge that the signature is not genuine may rely upon the 16 presumption under section 15-12-105, Idaho Code, that the signature is genu- 17 ine. 18 (3) A person that in good faith accepts an acknowledged power of attorney 19 without actual knowledge that the power of attorney is void, invalid or termi- 20 nated, that the purported agent's authority is void, invalid or terminated, or 21 that the agent is exceeding or improperly exercising the agent's authority may 22 rely upon the power of attorney as if the power of attorney were genuine, 23 valid and still in effect, the agent's authority were genuine, valid and still 24 in effect, and the agent had not exceeded and had properly exercised the 25 authority. 26 (4) A person that is asked to accept an acknowledged power of attorney 27 may request, and rely upon, without further investigation: 28 (a) An agent's certification under penalty of perjury of any factual mat- 29 ter concerning the principal, the agent or the power of attorney; 30 (b) An English translation of the power of attorney if the power of 31 attorney contains, in whole or in part, language other than English; and 32 (c) An opinion of counsel as to any matter of law concerning the power of 33 attorney if the person making the request provides in a writing or other 34 record the reason for the request. 35 (5) An English translation or an opinion of counsel requested under this 36 section must be provided at the principal's expense unless the request is made 37 more than seven (7) business days after the power of attorney is presented for 38 acceptance. 39 (6) For purposes of this section and section 15-12-120, Idaho Code, a 40 person that conducts activities through employees is without actual knowledge 41 of a fact relating to a power of attorney, a principal or an agent if the 42 employee conducting the transaction involving the power of attorney is without 43 actual knowledge of the fact. 44 15-12-120. LIABILITY FOR REFUSAL TO ACCEPT AN ACKNOWLEDGED POWER OF 45 ATTORNEY. (1) Except as otherwise provided in subsection (2) of this section: 46 (a) A person must either accept an acknowledged power of attorney or 47 request an agent's certification, a translation or an opinion of counsel 48 pursuant to section 15-12-119(4), Idaho Code, within seven (7) business 49 days after presentation of the power of attorney for acceptance; 50 (b) If a person requests an agent's certification, a translation, or an 51 opinion of counsel under section 15-12-119(4), Idaho Code, the person must 52 accept the power of attorney no later than five (5) business days after 53 receipt of the certification, translation or opinion of counsel; and 9 1 (c) A person may not require an additional or different form of power of 2 attorney for authority granted in the power of attorney presented. 3 (2) A person is not required to accept an acknowledged power of attorney 4 if: 5 (a) The person is not otherwise required to engage in a transaction with 6 the principal in the same circumstances; 7 (b) Engaging in a transaction with the agent or the principal in the same 8 circumstances would not be consistent with federal law; 9 (c) The person has actual knowledge of the termination of the agent's 10 authority or of the power of attorney before exercise of the power; 11 (d) A request for a certification, a translation, or an opinion of coun- 12 sel under section 15-12-119(4), Idaho Code, is refused; 13 (e) The person in good faith believes that the power is not valid or that 14 the agent does not have the authority to perform the act requested, 15 whether or not an agent's certification, a translation or an opinion of 16 counsel has been requested or provided; or 17 (f) The person makes, or has actual knowledge that another person has 18 made, a report to the local adult protective services office stating a 19 good faith belief that the principal may be subject to physical or finan- 20 cial abuse, neglect, exploitation or abandonment by the agent or a person 21 acting for or with the agent. 22 (3) A person that refuses in violation of this section to accept an 23 acknowledged power of attorney is subject to: 24 (a) A court order mandating acceptance of the power of attorney; and 25 (b) Liability for reasonable attorney's fees and costs incurred in any 26 action or proceeding that confirms the validity of the power of attorney 27 or mandates acceptance of the power of attorney. 28 15-12-121. PRINCIPLES OF LAW AND EQUITY. Unless displaced by a provision 29 of this chapter, the principles of law and equity supplement this chapter. 30 15-12-122. LAWS APPLICABLE TO FINANCIAL INSTITUTIONS AND ENTITIES. This 31 chapter does not supersede any law applicable to financial institutions or 32 other entities, and the other law controls if inconsistent with this chapter. 33 15-12-123. REMEDIES UNDER OTHER LAW. The remedies under this chapter are 34 not exclusive and do not abrogate any right or remedy under the law of this 35 state. 36 PART 2. 37 AUTHORITY 38 15-12-201. AUTHORITY THAT REQUIRES SPECIFIC GRANT -- GRANT OF GENERAL 39 AUTHORITY. (1) An agent under a power of attorney may exercise the following 40 authority on behalf of the principal or with the principal's property only if 41 the power of attorney expressly grants the agent the authority and exercise is 42 not otherwise prohibited by other agreement or instrument to which the author- 43 ity or property is subject: 44 (a) Create, amend, revoke or terminate an inter vivos trust; 45 (b) Make a gift; 46 (c) Create or change rights of survivorship; 47 (d) Create or change a beneficiary designation; 48 (e) Delegate authority granted under the power of attorney; 49 (f) Waive the principal's right to be a beneficiary of a joint and survi- 50 vor annuity, including a survivor benefit under a retirement plan; or 10 1 (g) Exercise fiduciary powers that the principal has authority to dele- 2 gate. 3 (2) Notwithstanding a grant of authority to exercise authority in subsec- 4 tion (1) of this section, unless the power of attorney otherwise provides, an 5 agent that is not an ancestor, spouse or descendant of the principal, may not 6 exercise authority under a power of attorney to create in the agent, or in an 7 individual to whom the agent owes a legal obligation of support, an interest 8 in the principal's property, whether by gift, right of survivorship, benefi- 9 ciary designation, disclaimer or otherwise. 10 (3) Subject to subsections (1), (2), (4) and (5) of this section, if a 11 power of attorney grants to an agent authority to do all acts that a principal 12 could do, the agent has the general authority described in sections 15-12-204 13 through 15-12-216, Idaho Code. 14 (4) Unless the power of attorney otherwise provides, a grant of authority 15 to make a gift is subject to section 15-12-217, Idaho Code. 16 (5) Subject to subsections (1), (2) and (4) of this section, if the sub- 17 jects over which authority is granted in a power of attorney are similar or 18 overlap, the broadest authority controls. 19 (6) Authority granted in a power of attorney is exercisable with respect 20 to a property interest that the principal has when the power of attorney is 21 executed or acquires later, whether or not the property is located in this 22 state and whether or not the authority is exercised or the power of attorney 23 is executed in this state. 24 (7) An act performed by an agent pursuant to a power of attorney has the 25 same effect and inures to the benefit of and binds the principal and the 26 principal's successors in interest as if the principal had performed the act. 27 15-12-202. INCORPORATION OF AUTHORITY. (1) An agent has authority 28 described in this part if the power of attorney refers to general authority 29 with respect to the descriptive term for the subjects stated in sections 30 15-12-204 through 15-12-217, Idaho Code, or cites the section in which the 31 authority is described. 32 (2) A reference in a power of attorney to general authority with respect 33 to the descriptive term for a subject in sections 15-12-204 through 15-12-217, 34 Idaho Code, or a citation to sections 15-12-204 through 15-12-217, Idaho Code, 35 incorporates the entire section as if it were set out in full in the power of 36 attorney. 37 (3) A principal may modify authority incorporated by reference. 38 15-12-203. CONSTRUCTION OF AUTHORITY GENERALLY. Except as otherwise pro- 39 vided in the power of attorney, by executing a power of attorney that incorpo- 40 rates by reference a subject described in sections 15-12-204 through 41 15-12-217, Idaho Code, or that grants to an agent authority to do all acts 42 that a principal could do pursuant to section 15-12-201(3), Idaho Code, a 43 principal authorizes the agent, with respect to that subject, to: 44 (1) Demand, receive and obtain by litigation or otherwise, money or 45 another thing of value to which the principal is, may become, or claims to be 46 entitled, and conserve, invest, disburse, or use anything so received for the 47 purposes intended; 48 (2) Contract in any manner with any person, on terms agreeable to the 49 agent, to accomplish a purpose of a transaction and perform, rescind, cancel, 50 terminate, reform, restate, release or modify the contract or another contract 51 made by or on behalf of the principal; 52 (3) Execute, acknowledge, seal, deliver, file or record any instrument or 53 communication the agent considers desirable to accomplish a purpose of a 11 1 transaction, including creating at any time a schedule listing some or all of 2 the principal's property and attaching it to the power of attorney; 3 (4) Prosecute, defend, submit to alternative dispute resolution, settle 4 and propose or accept a compromise with respect to a claim existing in favor 5 of or against the principal or intervene in litigation relating to the claim; 6 (5) Seek on the principal's behalf the assistance of a court or other 7 governmental agency to carry out an act authorized in the power of attorney; 8 (6) Engage, compensate and discharge an attorney, accountant, discretion- 9 ary investment manager, expert witness or other assistant; 10 (7) Prepare, execute and file a record, report or other document to safe- 11 guard or promote the principal's interest under a statute or governmental reg- 12 ulation; 13 (8) Communicate with any representative or employee of a government, gov- 14 ernmental subdivision, agency or instrumentality on behalf of the principal; 15 (9) Access communications intended for and communicate on behalf of the 16 principal, whether by mail, electronic transmission, telephone or other means; 17 and 18 (10) In general, do any other lawful act with respect to the subject and 19 all property related to the subject. 20 15-12-204. REAL PROPERTY. Unless a power of attorney otherwise provides, 21 language in a power of attorney granting general authority with respect to 22 real property authorizes the agent to: 23 (1) Demand, buy, lease, receive, accept as a gift or as security for an 24 extension of credit or otherwise acquire or reject an interest in real prop- 25 erty or a right incident to real property; 26 (2) Sell; exchange; convey with or without covenants, representations or 27 warranties; quitclaim; release; surrender; retain title for security; encum- 28 ber; partition; consent to partitioning; subject to an easement or covenant; 29 subdivide; apply for zoning, rezoning or other governmental permits; plat or 30 consent to platting; develop; grant options concerning; lease; sublease; con- 31 tribute to an entity in exchange for an interest in that entity; or otherwise 32 grant or dispose of an interest in real property or a right incident to real 33 property; 34 (3) Pledge or mortgage an interest in real property or right incident to 35 real property as security in order to borrow money or pay, renew or extend the 36 time of payment of a debt of the principal or a debt guaranteed by the princi- 37 pal; 38 (4) Release, assign, satisfy or enforce by litigation or otherwise a 39 mortgage, deed of trust, conditional sale contract, encumbrance, lien or other 40 claim to real property which exists or is asserted; 41 (5) Manage or conserve an interest in real property or a right incident 42 to real property owned or claimed to be owned by the principal, including: 43 (a) Insuring against liability, or casualty or other loss; 44 (b) Obtaining or regaining possession or protecting the interest or right 45 by litigation or otherwise; 46 (c) Paying, assessing, compromising or contesting taxes or assessments or 47 applying for and receiving refunds in connection with them; and 48 (d) Purchasing supplies, hiring assistance or labor and making repairs or 49 alterations to the real property; 50 (6) Use, develop, alter, replace, remove, erect or install structures or 51 other improvements upon real property in or incident to which the principal 52 has, or claims to have, an interest or right; 53 (7) Participate in a reorganization with respect to real property or an 54 entity that owns an interest in or right incident to real property and receive 12 1 and hold stocks and bonds or other property received in a plan of reorganiza- 2 tion, and act with respect to them, including: 3 (a) Selling or otherwise disposing of them; 4 (b) Exercising or selling an option, conversion, or similar right with 5 respect to them; and 6 (c) Exercising any voting rights in person or by proxy; 7 (8) Change the form of title of an interest in or right incident to real 8 property; and 9 (9) Dedicate to public use, with or without consideration, easements or 10 other real property in which the principal has, or claims to have, an inter- 11 est. 12 15-12-205. TANGIBLE PERSONAL PROPERTY. Unless a power of attorney other- 13 wise provides, language in a power of attorney granting general authority with 14 respect to tangible personal property authorizes the agent to: 15 (1) Demand, buy, receive, accept as a gift or as security for an exten- 16 sion of credit or otherwise acquire or reject ownership or possession of tan- 17 gible personal property or an interest in tangible personal property; 18 (2) Sell; exchange; convey with or without covenants, representations or 19 warranties; quitclaim; release; surrender; create a security interest in; 20 grant options concerning; lease; sublease; or otherwise dispose of tangible 21 personal property or an interest in tangible personal property; 22 (3) Grant a security interest in tangible personal property or an inter- 23 est in tangible personal property as security in order to borrow money or pay, 24 renew or extend the time of payment of a debt of the principal or a debt guar- 25 anteed by the principal; 26 (4) Release, assign, satisfy, or enforce by litigation or otherwise, a 27 security interest, lien or other claim on behalf of the principal, with 28 respect to tangible personal property or an interest in tangible personal 29 property; 30 (5) Manage or conserve tangible personal property or an interest in tan- 31 gible personal property on behalf of the principal, including: 32 (a) Insuring against liability, or casualty or other loss; 33 (b) Obtaining or regaining possession of or protecting the property or 34 interest, by litigation or otherwise; 35 (c) Paying, assessing, compromising or contesting taxes or assessments or 36 applying for and receiving refunds in connection with taxes or assess- 37 ments; 38 (d) Moving the property from place to place; 39 (e) Storing the property for hire or on a gratuitous bailment; and 40 (f) Using and making repairs, alterations or improvements to the prop- 41 erty; and 42 (6) Change the form of title of an interest in tangible personal prop- 43 erty. 44 15-12-206. STOCKS AND BONDS. Unless a power of attorney otherwise pro- 45 vides, language in a power of attorney granting general authority with respect 46 to stocks and bonds authorizes the agent to: 47 (1) Buy, sell and exchange securities; 48 (2) Establish, continue, modify or terminate a securities account; 49 (3) Pledge securities as security in order to borrow, pay, renew or 50 extend the time of payment of a debt of the principal; 51 (4) Receive certificates and other evidences of ownership with respect to 52 securities; and 53 (5) Exercise voting rights with respect to securities in person or by 13 1 proxy, enter into voting trusts and consent to limitations on the right to 2 vote. 3 15-12-207. COMMODITIES AND OPTIONS. Unless a power of attorney otherwise 4 provides, language in a power of attorney granting general authority with 5 respect to commodities and options authorizes the agent to: 6 (1) Buy, sell, exchange, assign, settle and exercise commodity futures 7 contracts and call and put options on stocks and stock indexes traded on a 8 regulated option exchange; and 9 (2) Establish, continue, modify and terminate option accounts. 10 15-12-208. BANKS AND OTHER FINANCIAL INSTITUTIONS. Unless a power of 11 attorney otherwise provides, language in a power of attorney granting general 12 authority with respect to banks and other financial institutions authorizes 13 the agent to: 14 (1) Continue, modify and terminate an account or other banking arrange- 15 ment made by or on behalf of the principal; 16 (2) Establish, modify and terminate an account or other banking arrange- 17 ment with a bank, trust company, savings and loan association, credit union, 18 thrift company, brokerage firm or other financial institution selected by the 19 agent; 20 (3) Contract for services available from a financial institution, includ- 21 ing renting a safe deposit box or space in a vault; 22 (4) Withdraw, by check, order, electronic funds transfer or otherwise, 23 money or property of the principal deposited with or left in the custody of a 24 financial institution; 25 (5) Receive statements of account, vouchers, notices and similar docu- 26 ments from a financial institution and act with respect to them; 27 (6) Enter a safe deposit box or vault and withdraw or add to the con- 28 tents; 29 (7) Borrow money and pledge as security personal property of the princi- 30 pal necessary in order to borrow money or pay, renew or extend the time of 31 payment of a debt of the principal; 32 (8) Make, assign, draw, endorse, discount, guarantee and negotiate prom- 33 issory notes, checks, drafts and other negotiable or nonnegotiable paper of 34 the principal or payable to the principal or the principal's order, transfer 35 money, receive the cash or other proceeds of those transactions and accept a 36 draft drawn by a person upon the principal and pay it when due; 37 (9) Receive for the principal and act upon a sight draft, warehouse 38 receipt or other document of title whether tangible or electronic, or other 39 negotiable or nonnegotiable instrument; 40 (10) Apply for, receive and use letters of credit, credit and debit cards, 41 electronic transaction authorizations and traveler's checks from a financial 42 institution and give an indemnity or other agreement in connection with let- 43 ters of credit; and 44 (11) Consent to an extension of the time of payment with respect to com- 45 mercial paper or a financial transaction with a financial institution. 46 15-12-209. OPERATION OF AN ENTITY OR BUSINESS. Subject to the terms of a 47 document or an agreement governing an entity or an entity ownership interest, 48 and unless a power of attorney otherwise provides, language in a power of 49 attorney granting general authority with respect to operation of an entity or 50 business authorizes the agent to: 51 (1) Operate, buy, sell, enlarge, reduce or terminate an ownership inter- 52 est; 14 1 (2) Perform a duty or discharge a liability and exercise in person or by 2 proxy a right, power, privilege or option that the principal has, may have, or 3 claims to have; 4 (3) Enforce the terms of an ownership agreement; 5 (4) Defend, submit to alternative dispute resolution, settle or compro- 6 mise litigation to which the principal is a party because of an ownership 7 interest; 8 (5) Exercise in person or by proxy, or enforce by litigation or other- 9 wise, a right, power, privilege or option the principal has or claims to have 10 as the holder of stocks and bonds; 11 (6) Defend, submit to alternative dispute resolution, settle or compro- 12 mise litigation to which the principal is a party concerning stocks and bonds; 13 (7) With respect to an entity or business owned solely by the principal: 14 (a) Continue, modify, renegotiate, extend and terminate a contract made 15 by or on behalf of the principal with respect to the entity or business 16 before execution of the power of attorney; 17 (b) Determine: 18 (i) The location of its operation; 19 (ii) The nature and extent of its business; 20 (iii) The methods of manufacturing, selling, merchandising, financ- 21 ing, accounting and advertising employed in its operation; 22 (iv) The amount and types of insurance carried; and 23 (v) The mode of engaging, compensating and dealing with its employ- 24 ees and accountants, attorneys or other agents; 25 (c) Change the name or form of organization under which the entity or 26 business is operated and enter into an ownership agreement with other per- 27 sons to take over all or part of the operation of the entity or business; 28 and 29 (d) Demand and receive money due or claimed by the principal or on the 30 principal's behalf in the operation of the entity or business and control 31 and disburse the money in the operation of the entity or business; 32 (8) Put additional capital into an entity or business in which the prin- 33 cipal has an interest; 34 (9) Join in a plan of reorganization, consolidation, conversion, 35 domestication or merger of the entity or business; 36 (10) Sell or liquidate an entity or business or part of it; 37 (11) Establish the value of an entity or business under a buy-out agree- 38 ment to which the principal is a party; 39 (12) Prepare, sign, file and deliver reports, compilations of information, 40 returns or other papers with respect to an entity or business and make related 41 payments; and 42 (13) Pay, compromise or contest taxes or assessments and perform any other 43 act to protect the principal from illegal or unnecessary taxation, fines, pen- 44 alties or assessments with respect to an entity or business, including 45 attempts to recover, in any manner permitted by law, money paid before or 46 after the execution of the power of attorney. 47 15-12-210. INSURANCE AND ANNUITIES. Unless a power of attorney otherwise 48 provides, language in a power of attorney granting general authority with 49 respect to insurance and annuities authorizes the agent to: 50 (1) Continue, pay the premium or make a contribution on, modify, 51 exchange, rescind, release or terminate a contract procured by or on behalf of 52 the principal which insures or provides an annuity to either the principal or 53 another person, whether or not the principal is a beneficiary under the con- 54 tract; 15 1 (2) Procure new, different and additional contracts of insurance and 2 annuities for the principal and the principal's spouse, children and other 3 dependents, and select the amount, type of insurance or annuity and mode of 4 payment; 5 (3) Pay the premium or make a contribution on, modify, exchange, rescind, 6 release or terminate a contract of insurance or annuity procured by the agent; 7 (4) Apply for and receive a loan secured by a contract of insurance or 8 annuity; 9 (5) Surrender and receive the cash surrender value on a contract of 10 insurance or annuity; 11 (6) Exercise an election; 12 (7) Exercise investment powers available under a contract of insurance or 13 annuity; 14 (8) Change the manner of paying premiums on a contract of insurance or 15 annuity; 16 (9) Change or convert the type of insurance or annuity with respect to 17 which the principal has or claims to have authority described in this section; 18 (10) Apply for and procure a benefit or assistance under a statute or gov- 19 ernmental regulation to guarantee or pay premiums of a contract of insurance 20 on the life of the principal; 21 (11) Collect, sell, assign, hypothecate, borrow against or pledge the 22 interest of the principal in a contract of insurance or annuity; 23 (12) Select the form and timing of the payment of proceeds from a contract 24 of insurance or annuity; and 25 (13) Pay, from proceeds or otherwise, compromise or contest, and apply for 26 refunds in connection with, a tax or assessment levied by a taxing authority 27 with respect to a contract of insurance or annuity or its proceeds or liabil- 28 ity accruing by reason of the tax or assessment. 29 15-12-211. ESTATES, TRUSTS AND OTHER BENEFICIAL INTERESTS. (1) In this 30 section, "estates, trusts, and other beneficial interests" means a trust, pro- 31 bate estate, guardianship, conservatorship, escrow or custodianship, or any 32 other fund from which the principal is, may become, or claims to be, entitled 33 to a share or payment. 34 (2) Unless the power of attorney otherwise provides, language in a power 35 of attorney granting general authority with respect to estates, trusts and 36 other beneficial interests authorizes the agent to: 37 (a) Accept, receive, receipt for, sell, assign, pledge or exchange a 38 share in or payment from the estate, trust or beneficial interest; 39 (b) Demand or obtain money or another thing of value to which the princi- 40 pal is, may become, or claims to be, entitled by reason of the estate, 41 trust or beneficial interest, by litigation or otherwise; 42 (c) Exercise for the benefit of the principal a presently exercisable 43 power of appointment held by the principal; 44 (d) (i) Initiate, participate in, submit to alternative dispute resolu- 45 tion, settle, oppose or propose or accept a compromise with respect 46 to litigation to: 47 1. Ascertain the meaning, validity or effect of a deed, will, 48 declaration of trust or other instrument or transaction affect- 49 ing the interest of the principal; or 50 2. Remove, substitute or surcharge a fiduciary; and 51 (ii) Regardless of whether or not language in a power of attorney 52 grants general authority with respect to estates, trusts and other 53 beneficial interests, the agent is authorized to enter into any reso- 54 lution of disputes and other matters involving trusts and estates 16 1 judicially or nonjudicially as provided in part 1, chapter 8, title 2 15, Idaho Code; 3 (e) Conserve, invest, disburse or use anything received for an authorized 4 purpose; 5 (f) Transfer an interest of the principal in real property, stocks and 6 bonds, accounts with financial institutions or securities intermediaries, 7 insurance, annuities and other property to the trustee of a trust created 8 by the principal as settlor; and 9 (g) (i) Release or consent to a reduction in or modification of a share 10 in or payment from the estate, trust or beneficial interest; and 11 (ii) Regardless of whether or not language in a power of attorney 12 grants general authority with respect to estates, trusts and other 13 beneficial interests, the agent is authorized to reject, renounce or 14 disclaim a share in or payment from the estate, trust or beneficial 15 interest pursuant to section 15-2-801, Idaho Code. 16 15-12-212. CLAIMS AND LITIGATION. Unless a power of attorney otherwise 17 provides, language in a power of attorney granting general authority with 18 respect to claims and litigation authorizes the agent to perform any lawful 19 act on behalf of the principal in connection with claims and litigation, 20 including: 21 (1) Assert and maintain before a court or administrative agency a claim, 22 claim for relief, cause of action, counterclaim, offset, recoupment or 23 defense, including an action to recover property or other thing of value, 24 recover damages sustained by the principal, eliminate or modify tax liability, 25 or seek an injunction, specific performance or other relief; 26 (2) Bring an action to determine adverse claims, intervene in litigation 27 and seek to act as amicus curiae; 28 (3) Seek an attachment, garnishment, order of arrest or other prelimi- 29 nary, provisional or intermediate relief and use an available procedure to 30 effect or satisfy a judgment, order or decree; 31 (4) Perform any lawful act, including make or accept a tender, offer of 32 judgment, or admission of facts, submit a controversy on an agreed statement 33 of facts, consent to examination before trial and bind the principal in liti- 34 gation; 35 (5) Submit to alternative dispute resolution, settle and propose or 36 accept a compromise; 37 (6) Waive the issuance and service of process upon the principal, accept 38 service of process, appear for the principal, designate persons upon which 39 process directed to the principal may be served, execute and file or deliver 40 stipulations on the principal's behalf, verify pleadings, seek appellate 41 review, procure and give surety and indemnity bonds, contract and pay for the 42 preparation and printing of records and briefs, receive, execute and file or 43 deliver a consent, waiver, release, confession of judgment, satisfaction of 44 judgment, notice, agreement or other instrument in connection with the prose- 45 cution, settlement or defense of a claim or litigation; 46 (7) Act for the principal with respect to bankruptcy or insolvency, 47 whether voluntary or involuntary, concerning the principal or some other per- 48 son, or with respect to a reorganization, receivership, or application for the 49 appointment of a receiver or trustee which affects an interest of the princi- 50 pal in property or other thing of value; 51 (8) Pay a judgment, award or order against the principal or a settlement 52 made in connection with litigation or alternative dispute resolution; and 53 (9) Receive money or another thing of value paid in settlement of or as 54 proceeds of a claim or litigation. 17 1 15-12-213. PERSONAL AND FAMILY MAINTENANCE. (1) Unless a power of attor- 2 ney otherwise provides, language in a power of attorney granting general 3 authority with respect to personal and family maintenance authorizes the agent 4 to: 5 (a) Perform the acts necessary to maintain the customary standard of liv- 6 ing of the principal, the principal's spouse, and the following individu- 7 als, whether living when the power of attorney is executed or later born: 8 (i) The principal's children; 9 (ii) Other individuals legally entitled to be supported by the prin- 10 cipal; and 11 (iii) Those individuals whom the principal has customarily supported 12 or indicated the intent to support; 13 (b) Make periodic payments of child support and other family maintenance 14 required by a court or governmental agency or an agreement to which the 15 principal is a party; 16 (c) Provide living quarters for those individuals described in paragraph 17 (a) of this subsection by purchase, lease or other contract or pay the 18 operating costs, including interest, amortization payments, repairs, 19 improvements and taxes, on premises owned by the principal or occupied by 20 those individuals; 21 (d) Provide normal domestic help, usual vacations and travel expenses, 22 and funds for shelter, clothing, food, appropriate education, including 23 postsecondary and professional-technical education and other current liv- 24 ing costs for those individuals described in paragraph (a) of this subsec- 25 tion; 26 (e) Pay expenses for necessary health care and custodial care on behalf 27 of the individuals described in paragraph (a) of this subsection; 28 (f) Act as the principal's personal representative pursuant to the health 29 insurance portability and accountability act, sections 1171 through 1179 30 of the social security act, 42 U.S.C. section 1320d through 1320d-8, as 31 amended, and applicable regulations, in making decisions related to the 32 past, present or future payment for the provision of health care consented 33 to by the principal or anyone authorized under the law of this state to 34 consent to health care on behalf of the principal; 35 (g) Continue any provision made by the principal for automobiles or other 36 means of transportation, including registering, licensing, insuring and 37 replacing them for the individuals described in paragraph (a) of this sub- 38 section; 39 (h) Maintain credit and debit accounts for the convenience of the indi- 40 viduals described in paragraph (a) of this subsection and open new 41 accounts to accomplish a lawful purpose; and 42 (i) Continue payments incidental to the membership or affiliation of the 43 principal in a religious institution, club, society, order or other orga- 44 nization or to continue contributions to those organizations. 45 (2) Authority with respect to personal and family maintenance is neither 46 dependent upon, nor limited by, authority that an agent may or may not have 47 with respect to gifts under this chapter. 48 15-12-214. BENEFITS FROM GOVERNMENTAL PROGRAMS OR CIVIL OR MILITARY SER- 49 VICE. (1) In this section, "benefits from governmental programs or civil or 50 military service" means any benefit, program or assistance provided under a 51 statute or governmental regulation including social security, medicare and 52 medicaid. 53 (2) Unless a power of attorney otherwise provides, language in a power of 54 attorney granting general authority with respect to benefits from governmental 18 1 programs or civil or military service authorizes the agent to: 2 (a) Execute vouchers in the name of the principal for allowances and 3 reimbursements payable by the United States or a foreign government or by 4 a state or subdivision of a state to the principal, including allowances 5 and reimbursements for transportation of the individuals described in sec- 6 tion 15-12-213(1)(a), Idaho Code, and for shipment of their household 7 effects; 8 (b) Take possession and order the removal and shipment of property of the 9 principal from a post, warehouse, depot, dock or other place of storage or 10 safekeeping, either governmental or private, and execute and deliver a 11 release, voucher, receipt, bill of lading, shipping ticket, certificate or 12 other instrument for that purpose; 13 (c) Enroll in, apply for, select, reject, change, amend or discontinue, 14 on the principal's behalf, a benefit or program; 15 (d) Prepare, file and maintain a claim of the principal for a benefit or 16 assistance, financial or otherwise, to which the principal claims to be 17 entitled under a statute or governmental regulation; 18 (e) Prosecute, defend, submit to alternative dispute resolution, settle 19 and propose or accept a compromise with respect to any benefit or assis- 20 tance the principal may be entitled to receive under a statute or govern- 21 mental regulation; and 22 (f) Receive the financial proceeds of a claim of the type described in 23 paragraph (d) of this subsection and conserve, invest, disburse or use 24 anything so received for a lawful purpose. 25 15-12-215. RETIREMENT PLANS. (1) In this section, "retirement plan" means 26 any plan or account created by an employer, the principal or another individ- 27 ual for the purpose of providing retirement benefits or deferred compensation 28 of which the principal is a participant, beneficiary or owner, including a 29 plan or account under the following sections of the Internal Revenue Code: 30 (a) An individual retirement account under Internal Revenue Code section 31 408, 26 U.S.C. section 408, as amended; 32 (b) A Roth individual retirement account under Internal Revenue Code sec- 33 tion 408A, 26 U.S.C. section 408A, as amended; 34 (c) A deemed individual retirement account under Internal Revenue Code 35 section 408(q), 26 U.S.C. section 408(q), as amended; 36 (d) An annuity or mutual fund custodial account under Internal Revenue 37 Code section 403(b), 26 U.S.C. section 403(b), as amended; 38 (e) A pension, profit-sharing, stock bonus or other retirement plan qual- 39 ified under Internal Revenue Code section 401(a), 26 U.S.C. section 40 401(a), as amended; 41 (f) A plan under Internal Revenue Code section 457(b), 26 U.S.C. section 42 457(b), as amended; and 43 (g) A nonqualified deferred compensation plan under Internal Revenue Code 44 section 409A, 26 U.S.C. section 409A, as amended. 45 (2) Unless a power of attorney otherwise provides, language in a power of 46 attorney granting general authority with respect to retirement plans autho- 47 rizes the agent to: 48 (a) Select the form and timing of payments under a retirement plan and 49 withdraw benefits from a plan; 50 (b) Make a rollover, including a direct trustee to trustee rollover, of 51 benefits from one (1) retirement plan to another; 52 (c) Establish a retirement plan in the principal's name; 53 (d) Make contributions to a retirement plan; 54 (e) Exercise investment powers available under a retirement plan; and 19 1 (f) Borrow from, sell assets to or purchase assets from a retirement 2 plan. 3 15-12-216. TAXES. Unless a power of attorney otherwise provides, language 4 in a power of attorney granting general authority with respect to taxes autho- 5 rizes the agent to: 6 (1) Prepare, sign and file federal, state, local and foreign income, 7 gift, payroll, property, federal insurance contributions act and other tax 8 returns, claims for refunds, requests for extension of time, petitions regard- 9 ing tax matters and any other tax related documents, including receipts, 10 offers, waivers, consents, including consents and agreements under Internal 11 Revenue Code section 2032A, 26 U.S.C. section 2032A, as amended, closing 12 agreements and any power of attorney required by the internal revenue service 13 or other taxing authority with respect to a tax year upon which the statute of 14 limitations has not run and the following twenty-five (25) tax years; 15 (2) Pay taxes due, collect refunds, post bonds, receive confidential 16 information and contest deficiencies determined by the internal revenue ser- 17 vice or other taxing authority; 18 (3) Exercise any election available to the principal under federal, 19 state, local or foreign tax law; and 20 (4) Act for the principal in all tax matters for all periods before the 21 internal revenue service, and any other taxing authority. 22 15-12-217. GIFTS. (1) In this section, a gift "for the benefit of" a per- 23 son includes, but is not limited to, a gift to a trust, an account under the 24 uniform transfers to minors act and a tuition savings account or prepaid 25 tuition plan as defined under Internal Revenue Code section 529, 26 U.S.C. 26 section 529, as amended. 27 (2) Unless a power of attorney otherwise provides, language in a power of 28 attorney granting general authority with respect to gifts authorizes the agent 29 to: 30 (a) Make outright to, or for the benefit of, a person, a gift of any of 31 the principal's property, including by the exercise of a presently exer- 32 cisable power of appointment held by the principal, in an amount per donee 33 not to exceed the annual dollar limits of the federal gift tax exclusion 34 under Internal Revenue Code section 2503(b), 26 U.S.C. section 2503(b), as 35 amended, without regard to whether the federal gift tax exclusion applies 36 to the gift, and if the principal's spouse agrees to consent to a split 37 gift pursuant to Internal Revenue Code section 2513, 26 U.S.C. section 38 2513, as amended, in an amount per donee not to exceed twice the annual 39 federal gift tax exclusion limit; and 40 (b) Consent, pursuant to Internal Revenue Code section 2513, 26 U.S.C. 41 section 2513, as amended, to the splitting of a gift made by the 42 principal's spouse in an amount per donee not to exceed the aggregate 43 annual gift tax exclusions for both spouses. 44 (3) An agent may make a gift of the principal's property only as the 45 agent determines is consistent with the principal's objectives if actually 46 known by the agent and, if unknown, as the agent determines is consistent with 47 the principal's best interest based on all relevant factors, including, but 48 not limited to: 49 (a) The value and nature of the principal's property; 50 (b) The principal's foreseeable obligations and need for maintenance; 51 (c) Minimization of taxes, including income, estate, inheritance, 52 generation-skipping transfer and gift taxes; 53 (d) Eligibility for a benefit, a program, or assistance under a statute 20 1 or governmental regulation; and 2 (e) The principal's personal history of making or joining in making 3 gifts. 4 PART 3. 5 STATUTORY FORMS 6 15-12-301. STATUTORY FORM POWER OF ATTORNEY. A document substantially in 7 the following form may be used to create a statutory form power of attorney 8 that has the meaning and effect prescribed in this chapter. 9 IDAHO STATUTORY FORM POWER OF ATTORNEY 10 IMPORTANT INFORMATION 11 This power of attorney authorizes another person (your agent) to make 12 decisions concerning your property for you (the principal). Your agent can 13 make decisions and act with respect to your property (including your money) 14 whether or not you are able to act for yourself. The meaning of authority over 15 subjects listed on this form is explained in the uniform power of attorney 16 act, chapter 12, title 15, Idaho Code. 17 This power of attorney does not authorize the agent to make health care 18 decisions for you. 19 You should select someone you trust to serve as your agent. The agent's 20 authority will continue until your death unless you revoke the power of attor- 21 ney or the agent resigns. 22 Your agent is entitled to reasonable compensation unless you state other- 23 wise in the Special Instructions. 24 This form provides for designation of one (1) agent. If you wish to name 25 more than one (1) agent, you may name a coagent in the Special Instructions. 26 Coagents are not required to act together unless you include that requirement 27 in the Special Instructions. 28 If your agent is unable or unwilling to act for you, your power of attor- 29 ney will end unless you have named a successor agent. You may also name a 30 second successor agent. 31 This power of attorney becomes effective immediately unless you state 32 otherwise in the Special Instructions. 33 If you have questions about the power of attorney or the authority you are 34 granting to your agent, you should seek legal advice before signing this form. 35 DESIGNATION OF AGENT 36 I, ....(Name of Principal)...., name the following person as my agent: 37 Name of Agent:................................................................ 38 Agent's Address:.............................................................. 39 Agent's Phone Number:......................................................... 40 DESIGNATION OF SUCCESSOR AGENT(S) (OPTIONAL) 41 If my agent is unable or unwilling to act for me, I name as my successor 42 agent: 43 Name of Successor Agent:...................................................... 44 Successor Agent's Address:.................................................... 45 Successor Agent's Phone Number:............................................... 21 1 If my successor agent is unable or unwilling to act for me, I name as my 2 second successor agent: 3 Name of Second Successor Agent:............................................... 4 Second Successor Agent's Address:............................................. 5 Second Successor Agent's Phone Number:........................................ 6 GRANT OF GENERAL AUTHORITY 7 I grant my agent and any successor agent general authority to act for me 8 with respect to the following subjects as defined in the uniform power of 9 attorney act, chapter 12, title 15, Idaho Code: 10 (INITIAL each subject you want to include in the agent's general authority. 11 If you wish to grant general authority over all of the subjects you may ini- 12 tial "All Preceding Subjects" instead of initialing each subject.) 13 (...) Real Property 14 (...) Tangible Personal Property 15 (...) Stocks and Bonds 16 (...) Commodities and Options 17 (...) Banks and Other Financial Institutions 18 (...) Operation of an Entity or Business 19 (...) Insurance and Annuities 20 (...) Estates, Trusts, and Other Beneficial Interests 21 (...) Claims and Litigation 22 (...) Personal and Family Maintenance 23 (...) Benefits from Governmental Programs or Civil or Military Service 24 (...) Retirement Plans 25 (...) Taxes 26 (...) All Preceding Subjects 27 GRANT OF SPECIFIC AUTHORITY (OPTIONAL) 28 My agent MAY NOT do any of the following specific acts for me UNLESS I 29 have INITIALED the specific authority listed below: 30 (CAUTION: Granting any of the following will give your agent the authority 31 to take actions that could significantly reduce your property or change how 32 your property is distributed at your death. INITIAL ONLY the specific author- 33 ity you WANT to give your agent.) 34 (...) Create, amend, revoke, or terminate an inter vivos trust 35 (...) Make a gift, subject to the limitations of the uniform power of 36 attorney act, chapter 12, title 15, Idaho Code, and any special 37 instructions in this power of attorney 38 (...) Make a gift without limitations except any special instructions in 39 this power of attorney 40 (...) Create or change rights of survivorship 41 (...) Create or change a beneficiary designation 42 (...) Authorize another person to exercise the authority granted under 43 this power of attorney 44 (...) Waive the principal's right to be a beneficiary of a joint and sur- 45 vivor annuity, including a survivor benefit under a retirement plan 46 (...) Exercise fiduciary powers that the principal has authority to dele- 47 gate 22 1 LIMITATION ON AGENT'S AUTHORITY 2 An agent that is not my ancestor, spouse, or descendant MAY NOT use my 3 property to benefit the agent or a person to whom the agent owes an obligation 4 of support unless I have included that authority in the Special Instructions. 5 SPECIAL INSTRUCTIONS (OPTIONAL) 6 On the following lines you may give special instructions: 7 .............................................................................. 8 .............................................................................. 9 .............................................................................. 10 EFFECTIVE DATE 11 This power of attorney is effective immediately unless I have stated 12 otherwise in the Special Instructions. 13 NOMINATION OF CONSERVATOR (OPTIONAL) 14 If it becomes necessary for a court to appoint a conservator of my estate, 15 I nominate the following person(s) for appointment: 16 Name of Nominee for conservator of my estate: ................................ 17 Nominee's Address: ........................................................... 18 Nominee's Phone Number:....................................................... 19 RELIANCE ON THIS POWER OF ATTORNEY 20 Any person, including my agent, may rely upon the validity of this power 21 of attorney or a copy of it unless that person knows it is terminated or 22 invalid. 23 SIGNATURE AND ACKNOWLEDGMENT 24 (OPTION ONE - IF YOU ARE ABLE TO SIGN ON YOUR OWN) 25 Your Signature: .............................................................. 26 Date: ........................................................................ 27 Your Name Printed: ........................................................... 28 Your Address: ................................................................ 29 Your Phone Number: ........................................................... 30 NOTARY - REQUIRED FOR RECORDING AND FOR REAL PROPERTY 31 State of Idaho, county of ...., ss. 32 On this .... day of ...., in the year of ...., before me (here insert the 33 name and quality of the officer), personally appeared ...., known or identi- 34 fied to me (or proved to me on the oath of ....), to be the person whose name 35 is subscribed to the within instrument, and acknowledged to me that he (or 36 they) executed the same. 37 My commission expires on ....,.... 38 (OPTION TWO - IF YOU ARE UNABLE TO SIGN ON YOUR OWN AND DIRECT THE NOTARY TO 39 SIGN FOR YOU) 40 Signature of person by notary: .................... 41 Witness Signature: ..................... 42 Signature affixed by notary in the presence of (names of person and wit- 43 ness). 23 1 State of Idaho ) 2 ) ss. 3 County of ..... ) 4 On this ..... day of .........., in the year ....., before me (here insert 5 the name and quality of the officer), personally appeared ............., 6 known or identified to me (or proved to me on the oath of 7 .......................) to be the person whose name is subscribed to the 8 within instrument, and acknowledged to me that he executed the same by 9 directing the undersigned notary to affix his signature thereto. 10 ....................(official signature and seal) 11 My commission expires on .....,.... 12 IMPORTANT INFORMATION FOR AGENT 13 AGENT'S DUTIES 14 When you accept the authority granted under this power of attorney, a spe- 15 cial legal relationship is created between you and the principal. This rela- 16 tionship imposes upon you legal duties that continue until you resign or the 17 power of attorney is terminated or revoked. You must: 18 (1) Do what you know the principal reasonably expects you to do with the 19 principal's property or, if you do not know the principal's 20 expectations, act in the principal's best interest; 21 (2) Act in good faith; 22 (3) Do nothing beyond the authority granted in this power of attorney; 23 and 24 (4) Disclose your identity as an agent whenever you act for the principal 25 by signing the name of the principal and signing your own name as 26 "agent" in the following manner: 27 .......(Principal's Name)......by.......(Your Signature).....as agent 28 Unless the Special Instructions in this power of attorney state otherwise, 29 you must also: 30 (1) Act loyally for the principal's benefit; 31 (2) Avoid conflicts that would impair your ability to act in the 32 principal's best interest; 33 (3) Act with care, competence and diligence; 34 (4) Keep a record of all receipts, disbursements, and transactions con- 35 ducted for the principal; 36 (5) Cooperate with any person that has authority to make health care 37 decisions for the principal to do what you know the principal reason- 38 ably expects or, if you do not know the principal's expectations, to 39 act in the principal's best interest; and 40 (6) Attempt to preserve the principal's estate plan if you know the plan 41 and preserving the plan is consistent with the principal's best 42 interest. 43 TERMINATION OF AGENT'S AUTHORITY 44 You must stop acting on behalf of the principal if you learn of any event 45 that terminates this power of attorney or your authority under this power of 46 attorney. Events that terminate a power of attorney or your authority to act 47 under a power of attorney include: 48 (1) Death of the principal; 49 (2) The principal's revocation of the power of attorney or your author- 50 ity; 24 1 (3) The occurrence of a termination event stated in the power of attor- 2 ney; 3 (4) The purpose of the power of attorney is fully accomplished; or 4 (5) A legal action is filed with a court to end your marriage to the 5 principal, or for your legal separation, unless the Special Instruc- 6 tions in this power of attorney state that such an action will not 7 terminate your authority. 8 LIABILITY OF AGENT 9 The meaning of the authority granted to you is defined in the act. If you 10 violate the act or act outside the authority granted, you may be liable for 11 any damages caused by your violation. 12 IF THERE IS ANYTHING ABOUT THIS DOCUMENT OR YOUR DUTIES THAT YOU DO NOT UNDER- 13 STAND, YOU SHOULD SEEK LEGAL ADVICE. 14 15-12-302. AGENT'S CERTIFICATION. The following optional form may be used 15 by an agent to certify facts concerning a power of attorney. 16 AGENT'S CERTIFICATION AS TO THE VALIDITY OF POWER OF ATTORNEY AND 17 AGENT'S AUTHORITY 18 State of Idaho ) 19 ) ss. 20 County of ......) 21 I, ......(Name of Agent)......, certify under penalty of perjury that 22 ......(Name of Principal) ...... granted me authority as an agent or successor 23 agent in a Power of Attorney dated ....... 24 I further certify that to my knowledge: 25 (1) The Principal is alive and has not revoked the Power of Attorney or 26 my authority to act under the Power of Attorney and that the Power of Attorney 27 and my authority to act under the Power of Attorney have not terminated; 28 (2) If the Power of Attorney was drafted to become effective upon the 29 happening of an event or contingency, the event or contingency has occurred; 30 (3) If I was named as a successor agent, that the prior agent is no 31 longer able or willing to serve; and 32 (4) (Insert other relevant statements): ................................. 33 .............................................................................. 34 SIGNATURE AND ACKNOWLEDGMENT 35 ..................... 36 Agent's Signature 37 Date: ........................................................................ 38 Agent's Name Printed: ........................................................ 39 Agent's Address: ............................................................. 40 Agent's Phone Number: ........................................................ 41 This document was acknowledged before me on .....(date)....., by ....(Name of 42 Agent)..... 25 1 Notary Public for Idaho: ..................................................... 2 Residing at: ................................................................. 3 My commission expires on: .................................................... 4 PART 4. 5 MISCELLANEOUS PROVISIONS 6 15-12-401. UNIFORMITY OF APPLICATION AND CONSTRUCTION. In applying and 7 construing this uniform act, consideration must be given to the need to pro- 8 mote uniformity of the law with respect to its subject matter among the states 9 that enact it. 10 15-12-402. RELATION TO ELECTRONIC SIGNATURES IN GLOBAL AND NATIONAL COM- 11 MERCE ACT. This chapter modifies, limits and supersedes the federal electronic 12 signatures in global and national commerce act, 15 U.S.C. section 7001 et 13 seq., but does not modify, limit or supersede section 101(c) of that act, 15 14 U.S.C. section 7001(c), or authorize electronic delivery of any of the notices 15 described in section 103(b) of that act, 15 U.S.C. section 7003(b). 16 15-12-403. EFFECT ON EXISTING POWERS OF ATTORNEY. Except as otherwise 17 provided in this chapter, on the effective date of this chapter: 18 (1) This chapter applies to a power of attorney created before, on or 19 after the effective date of this chapter; 20 (2) This chapter applies to a judicial proceeding concerning a power of 21 attorney commenced on or after the effective date of this chapter; 22 (3) This chapter applies to a judicial proceeding concerning a power of 23 attorney commenced before the effective date of this chapter unless the court 24 finds that application of a provision of this chapter would substantially 25 interfere with the effective conduct of the judicial proceeding or prejudice 26 the rights of a party, in which case that provision does not apply and the 27 superseded law applies; and 28 (4) An act done before the effective date of this chapter is not affected 29 by this chapter. 30 SECTION 3. That Section 54-1142, Idaho Code, be, and the same is hereby 31 amended to read as follows: 32 54-1142. AUTHORITY IN ABSENCE OF PREARRANGED FUNERAL PLAN. (1) If the 33 decedent has not made a prearranged funeral plan as set forth in section 34 54-1139, Idaho Code, the right to control the disposition of the remains of a 35 deceased person vests in, and devolves upon the following in the order named: 36 (a) The person designated in a written document executed by the decedent 37 and acknowledged in the same manner as required for instruments conveying 38 real property, and subject to such limitations, restrictions, or direc- 39 tions, as may be set forth in such document; 40 (b) The person designated as agent under a durable power of attorney for 41 health care executed by the decedent, unless such durable power of attor- 42 ney for health care contains express and clear language denying such 43 right; 44 (c) The person designated in a durable power of attorney executed by the 45 decedent, if such power of attorney contains express and clear language 46 granting such right to the agent named in such power of attorney; 47 (d) The competent surviving spouse of the decedent; 48 (e) A majority of the competent surviving adult children of the decedent, 49 provided that less than one-half (1/2) of the competent surviving adult 26 1 children shall be vested with the right to control the disposition of the 2 remains of the decedent if they have used reasonable efforts to notify all 3 other competent surviving adult children of their instructions to dispose 4 of the decedent's remains and are not aware of any opposition to those 5 instructions on the part of more than one-half (1/2) of all competent sur- 6 viving adult children; 7 (f) The competent surviving parents or parent of the decedent, provided 8 that if one (1) of the competent surviving parents is absent, the remain- 9 ing competent surviving parent shall be vested with the right to control 10 the disposition of the remains of the decedent after reasonable efforts 11 have been made and are unsuccessful in locating the absent competent sur- 12 viving parent; 13 (g) The person appointed by a court of competent jurisdiction as the per- 14 sonal representative or administrator of the estate of the decedent; 15 (h) The person nominated as the personal representative of the estate of 16 the decedent in the will of the decedent; 17 (i) The competent adult person or persons entitled to inherit from the 18 decedent under the intestate succession laws of the state of Idaho, 19 respectively in the next degree of kinship, provided that if there is more 20 than one (1) competent surviving adult person of the same degree of kin- 21 ship, the majority of those persons, and provided further that less than 22 the majority of competent surviving adult persons of the same degree of 23 kinship shall be vested with the right to control the disposition of the 24 remains of the decedent if those persons have used reasonable efforts to 25 notify all other competent surviving adult persons of the same degree of 26 kinship of their instructions to dispose of the decedent's remains and are 27 not aware of any opposition to those instructions on the part of one-half 28 (1/2) or more of all competent surviving adult persons of the same degree 29 of kinship; 30 (j) If the persons listed above fail to exercise their right to dispose 31 of the remains of the deceased person within forty (40) days of the death 32 of the deceased person, the person acting as guardian of the ward at the 33 time of the ward's death, or if no guardian was then acting, the person 34 acting as conservator of the protected person at the time of the protected 35 person's death, has the authority to dispose of the deceased person's 36 remains, including cremation of the remains. 37 (2) If any person to whom the right of control has vested pursuant to the 38 foregoing has been charged with first or second degree murder or voluntary 39 manslaughter in connection with the decedent's death, and those charges are 40 known to the funeral director or cemetery authority, the right of control is 41 relinquished and passed on to the next qualifying person as listed above as if 42 the charged person did not exist; provided however, that if the charges 43 against such person are dropped, or if such person is acquitted of the 44 charges, the right of control is returned to the person. 45 (3) For purposes of this section: 46 (a) "Adult" means an individual who is eighteen (18) years of age or 47 older; 48 (b) "Child" means a natural or adopted child of the decedent; 49 (c) "Competent" means the individual has not been declared incompetent by 50 a court of law, or who has been declared competent by a court of law after 51 a prior declaration of incompetence; 52 (d) "Durable power of attorney" means a power of attorney described in 53 section15-5-50115-12-102, Idaho Code, or any similar document properly 54 executed under the laws of another jurisdiction; and 55 (e) "Durable power of attorney for health care" means the document 27 1 described in chapter 45, title 39, Idaho Code, or any similar document 2 properly executed under the laws of another jurisdiction; 3 (f) "Will" means any testamentary device which is valid under the Idaho 4 probate code, including, but not limited to, sections 15-2-503, 15-2-504 5 and 15-2-506, Idaho Code, whether or not originally executed in, or under 6 the laws of, the state of Idaho. 7 (4) (a) A cemetery authority or licensed funeral director or a licensed 8 hospital or its authorized personnel may permit or assist in, and a physi- 9 cian may perform, an autopsy of any remains of a decedent in its custody: 10 (i) If the decedent, prior to his death, authorizes an autopsy in 11 his will or in another written instrument, including, but not limited 12 to, a durable power of attorney for health care; or 13 (ii) Upon the receipt of a written authorization signed by, 14 telegrammed from, or received by facsimile transmission from, a per- 15 son representing himself to be the person who is entitled under this 16 section to control the disposition of the remains of the decedent, or 17 to be a coroner or any other duly authorized public officer; or 18 (iii) Upon the receipt of an oral authorization obtained by tele- 19 phone, and recorded on tape or other recording device, from a person 20 representing himself to be the person who is entitled under this sec- 21 tion to control the disposition of the remains of the decedent, or to 22 be a coroner or any other duly authorized public officer. 23 (b) A cemetery authority or a licensed funeral director of a licensed 24 hospital or its authorized personnel is not liable for permitting or 25 assisting, and a physician is not liable for performing, an autopsy pursu- 26 ant to the authorization provided in paragraph (a) of this subsection 27 unless he has actual notice that such representation is untrue at the time 28 the autopsy is performed. If such authorization is contained in a will, 29 the autopsy may be performed regardless of the validity of the will in 30 other respects and regardless of whether the will may not be offered for, 31 or admitted to, probate until a later date. 32 (c) This subsection shall not authorize the obtaining of an oral authori- 33 zation by telephone, recorded on tape or other recording device, for the 34 autopsy of a deceased person if it is made known to the physician who is 35 to perform the autopsy that the deceased person was, at the time of his 36 death, a member of a religion or group which opposes autopsies.
STATEMENT OF PURPOSE
RS: 17558
The Uniform Power of Attorney Act provides a simple way for people
to deal with their property by providing a power of attorney, which
can be used in case of future incapacity or if the principal is
unavailable. While chiefly a set of default rules, the act also
contains safeguards for the protection of the principal.
FISCAL NOTE
This bill will have no fiscal impact.
CONTACT:
Sen. Bart Davis
Telephone: (208)332-1305
Robert L. Aldridge, Trust & Estate Professionals of Idaho, Inc.
Telephone: office: (208) 336-9880 Cell: (208) 631-2481
STATEMENT OF PURPOSE/FISCAL NOTE S 1335