10-6B-40 (2019)

(a)(1) An agent under a power of attorney may do the following on behalf of the principal or with the principal’s property only if the power of attorney expressly grants the agent the authority and exercise of the authority is not otherwise prohibited by another agreement or instrument to which the authority or property is subject:

(A) Create, fund, amend, revoke, or terminate an inter vivos trust, other than a trust created pursuant to 42 U.S.C. Section 1396p(d)(4)(B) as provided under subsection (d) of Code Section 53-12-20;

(B) Make a gift;

(C) Create or change rights of survivorship;

(D) Create or change a beneficiary designation;

(E) Authorize another person to exercise authority granted under the power of attorney;

(F) Waive the principal’s right to be a beneficiary of a joint and survivor annuity, including a survivor benefit under a retirement plan;

(G) Exercise fiduciary powers, other than those associated with an ownership interest as provided under paragraph (14) of Code Section 10-6B-48, that the principal has authority to delegate;

(H) Exercise authority over the content of electronic communications, as such term is defined in Code Section 53-13-2, sent or received by the principal; or

(I) Renounce an interest in property, including a power of appointment.

(2) A failure to grant authority under subparagraphs (1)(A) through (1)(D) of this subsection shall not prevent an agent from accessing information, depositing money, or withdrawing money, pursuant to the agent’s other authority and in accordance with the agent’s duties to the principal, from a revocable trust or an account or other banking arrangement with a bank or other financial institution.

(b) Notwithstanding a grant of authority: (1) To do an act described in subsection (a) of this Code section, unless the power of attorney otherwise provides, an agent that is not an ancestor, spouse, or descendant of the principal, shall not exercise authority under a power of attorney to create in the agent, or in an individual to whom the agent owes a legal obligation of support, an interest in the principal’s property, whether by gift, right of survivorship, beneficiary designation, disclaimer, or otherwise; and (2) To exercise a fiduciary power described in subparagraph (a)(1)(G) of this Code section, an agent may only exercise those fiduciary powers of the principal that are expressly and clearly identified in the power of attorney. In identifying such fiduciary powers, the principal shall specify the persons for which the principal acts as a fiduciary. If such persons are not individuals, the principal shall specify only the estate, trust, or other legal or commercial entity for which the principal acts as a fiduciary. With respect to such an entity, the principal shall not be required to specify additional persons such as beneficiaries, members, partners, or other similar persons.

(c) Subject to subsections (a), (b), (d), and (e) of this Code section, if a power of attorney grants to an agent authority to do all acts that a principal could do, the agent has the general authority described in Code Sections 10-6B-43 through 10-6B-55.

(d) Unless the power of attorney otherwise provides, a grant of authority to make a gift shall be subject to Code Section 10-6B-56.

(e) Subject to subsections (a), (b), and (d) of this Code section, if the subjects over which authority is granted in a power of attorney are similar or overlap, the broadest authority shall control.

(f) Authority granted in a power of attorney is exercisable with respect to property that the principal has when the power of attorney is executed or acquires later, whether or not the property is located in this state and whether or not the authority is exercised or the power of attorney is executed in this state.

(g) An act performed by an agent pursuant to a power of attorney shall have the same effect and inures to the benefit of and binds the principal and the principal’s successors in interest as if the principal had performed the act.

(h) A power of attorney shall not authorize an agent to:

(1) Execute or revoke any will or codicil for the principal;

(2) Make an affidavit as to the personal knowledge of the principal; or

(3) Vote in any public election on behalf of the principal.

(i) An agent under a power of attorney that does not expressly grant the agent the authority to do an act described in paragraph (1) of subsection (a) of this Code section or Code Sections 10-6B-43 through 10-6B-55 may petition the court for authority to do such act that is reasonable under the circumstances.