By Fred Nelson, Staff Attorney with Iowa Legal Aid’s Legal Hotline for Older Iowans
Effective July 1, 2014 Iowa’s Uniform Power of Attorney Act is in effect and is found in new sections 633B.101 – 633B.403. These are not minor changes to Iowa’s previous law, rather the entire section has been repealed and replaced with the new uniform law. After July 1, 2014, all powers of attorney (POA) must comply with the new statute. However, a power of attorney legally executed in this state before July 1, 2014, remains valid. Out-of-state powers of attorney and military powers of attorney continue to be recognized as valid if legally executed.
Iowa joined a growing number of states that have adopted the Uniform Power of Attorney Act which covers financial and property decisions, but does not apply to health care decisions. While there had been previous efforts at uniformity with powers of attorney and probate standards, a number of states adopted divergent laws over the intervening years which frustrated portability and enforcement across state lines. As such, according to the Uniform Law Commission, the Uniform Power of Attorney Act was created in 2006, to reintroduce principles for consistency that serve to encourage acceptance of powers of attorney by third persons, safeguard incapacitated principals, and provide clearer guidelines for agents. According to legislative materials, Iowa adopted the Uniform Power of Attorney Act in an attempt to overhaul its current “rudimentary” law and embrace a much more comprehensive approach as the “default” for creation of a POA.
While the adoption of the Act creates too many changes to be addressed in this forum, a couple notable examples will be included in this article. First, the new act specifies in detail the scope and authority that can be granted to agents in making decisions for the principal under a power of attorney appointment, including when an agent is protected from liability and when an agent may be liable for damages or required to restore and reimburse if in violation of the Act. In addition the power is durable unless it expressly provides that it is terminated by the incapacity of the principal. The power is also effective immediately unless otherwise provided for in the document. Also, the Act authorizes certain individuals (spouses, children and other individuals close to the principal) the right to legally challenge the actions of an agent.
The Act provides specific language for both the power of attorney form as well as an optional Agent’s Certification Form. The Agent’s Certification Form is to be used by the agent to certify certain facts concerning the power of attorney, including that the agent was granted authority under a power of attorney and that the principal is still alive and has not revoked the power. The statute also includes default language for a form power of attorney that carries the meaning and effect as set out in the statute. Notable differences include an introductory section with an overview explanation of the power of attorney. The designation of the agent includes optional designation of successor agents. The form provides for checking off the powers granted, both general and specific powers as well as a section to write in special instructions (such as effective only at incapacity). After the signature and acknowledgement section there is an overview of the agent’s duties which includes explanation of the agent’s legal relationship and duty to act in the principal’s best interest. There are also instructions on how to sign as the agent and a list of events that terminate the agent’s authority to act under the power of attorney.
While these changes are significant and a close reading of the full statute, SF 2168, is recommended, the new act creates a much clearer explanation of the duties and rights of all parties involved within the power of attorney relationship.
Iowa Legal Aid provides free legal assistance to low-income Iowans in all 99 counties with civil legal problems involving basic necessities and safety. For additional information visit Iowa Legal Aid’s websites, www.iowalegalaid.org and www.probono.net/iowa. Probono.net/iowa is a free, members only site that provides a comprehensive collection of information on legal topics, upcoming events including continuing legal education opportunities, and resources on civil law practice for members of Iowa’s justice community.
