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LEGAL UPDATE: Kentucky Changes Power of Attorney Law Effective July 2020

Nathan Vinson

Nathan Vinson

By Nathan Vinson

Right at two years to the date, Kentucky has again changed its power of attorney law by adopting parts of the Uniform Power of Attorney Act that it did not adopt as part of the changes that went into effect on July 14, 2018.  The new law went into effect on July 15, 2020, and applies to a power of attorney created before, on, or after July 15.  However, acts done before July 15, 2020 are not affected by the new law.

The biggest change created by the 2018 law was the requirement that the power of attorney be witnessed by two disinterested persons, though a power of attorney validly executed before that law went into effect remained valid.  The new law brings about three major changes – one of them being no more witnesses required!  Just two years after that requirement came into effect, it is again changed to take us back to prior law.  However, practitioners may decide it is best practice to continue to require two witnesses.  Further, some states require that the power of attorney have two witnesses, especially when used to transfer real estate.  On the flipside, the new law makes executing a power of attorney in urgent situations much easier.

To expound on that point and bring us to the second major change, the new law creates statutory powers and a statutory form.  The statutory form arguably should help make power of attorney documents more uniform and identifiable and thus more readily accepted by third parties (e.g. banks).  However, attorneys will need to adapt their service delivery given the new statutory powers; attorneys need to spend time educating clients on what powers they are granting to their agents.  Some powers are granted automatically just by general reference in the power of attorney (e.g., granting authority to deal with banks and other financial institutions) while other powers must be specifically delineated.

One such power that must be specifically delineated is gifting – the third major change.  The 2018 law repealed the statutory requirement that gifting be expressly authorized and thus left practitioners confused on whether gifting was automatically authorized even in the absence of such language in a power of attorney.  The 2020 law now requires the power of attorney to expressly authorize gifts.  It also goes into detail about certain gifts to certain persons who are serving as agents that must be expressly authorized (e.g., agents other than spouses, ancestors, or descendants).

I am often asked, why is a power of attorney so important? A durable power of attorney is one of the most important documents anyone can have in place in the event they are unable to care for themselves. A durable power of attorney gives authority to a third party to do things on behalf of someone who cannot do for themselves. A durable power of attorney could prevent you from having to be declared incompetent in court if something bad happens to you. This simple document can save you time, money, and embarrassment, and accomplish everything that you need to continue to function as a private citizen.

But as you can see, the laws regarding estate planning documents such as a power of attorney can change often and quickly. As well, there are many variations of a power of attorney. Not all people are the same, and not everyone has the same issues and needs. That’s why it is important to have a professional to discuss your options and determine which elements you need and the proper wording required to ensure you are fully protected.

If you or a loved one have questions about your current power of attorney or if you wish to discuss your estate planning needs including the creation of a power of attorney, contact me, Nathan Vinson, at 270-781-6500 or nvinson@elpolaw.com.

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