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Jaspers, Moriarty & Wetherille, P.A.
Seasoned Legal Judgment For The South Metro Area

Power of Attorney

As of January 1, 2014, there is a new Statutory Short Form Power of Attorney in Minnesota. The new form only affects documents signed after January 1, 2014, so if you have a power of attorney executed before that date, your document is still valid. However moving forward, all newly created Powers of Attorney must use the updated format. This change was made by the Minnesota Legislature in an effort to continue to provide consumer protection to the principal (the person who creates the Power of Attorney). As with the former Short Form Power of Attorney, the principal does not lose the right to control property or money matters; however, your attorney-in-fact can also act for you without your consent. For that reason, it is important to choose someone you trust to act on your behalf. The Legislature has added important notice provisions to the form in hopes that the notices will educate both the principal and the attorney(s)-in-act on the level of power conveyed with executing this document.

In particular, three changes were made to the new form:

1) The first paragraph of the form informs the parties that before executing the document, the parties must read the “Important Notice to Principal,” and the “Important Notice to Attorney(s)-In-Fact.” The Important Notice to Principal on pages four and five of the document is an explanation of the purpose of the document, the powers given to the attorney-in-fact, the duties of the attorney-in-fact, and how the document is terminated. One significant addition to the new form included under the powers section, informs the principal that the Power of Attorney does not give the attorney-in-fact the power to make health care decisions. A separate Health Care Directive that complies with Minnesota Statutes, Chapter 145C is necessary in addition to a Power of Attorney. Additionally, the Notice requires the principal to initial the Notice provision before executing the document. The Notice to the attorney(s)-in-fact outlines the duties and obligations when exercising the authority granted by the Power of Attorney.

2) The First section of the form includes a list of all of the powers of the attorney-in-fact. The Form lists out the potential powers, power (A) through (M), and then the last power listed, part (N), includes all of the powers listed in (A) through (M) above and all other matters, other than health care decisions under a health care directive that complies with Minnesota Statutes, chapter 145C. This addition provides further notice that the Power of Attorney does not give your attorney-in-fact the power to make health care decisions.

3) The Third section of the form now includes a more specific “self-dealing” gift provision. This provision allows the principal to decide whether the attorney(s)-in-fact may make gifts to the attorney(s)-in-fact, or anyone the attorney(s)-in-fact are legally obligated to support. Additionally, there is a second option allowing the principal to limit the gifting power to only the attorney(s)-in-fact specifically named in that section. Minnesota Statutes, section 523.24, subdivision 8, clause (2), limits the annual gift(s) made by attorney(s)-in-fact, or to anyone the attorney(s)-in-fact are legally obligated to support, to an amount, in the aggregate, that does not exceed the federal annual gift tax exclusion amount in the year of the gift, which is currently $14,000.

The newest amendments are meant to provide clarity for both the principal and the attorney(s)-in-fact. The lawyers at Jaspers, Moriarty & Wetherille, P.A. are happy to advise you specifically regarding these changes moving forward.

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