Session Law

Identifying Information:L. 2003 ch. 058
Other Identifying Information:2003 House Bill 2034
Tax Type:Other
Brief Description:An Act concerning the Kansas power of attorney act; amending K.S.A. 2002 Supp. 58a- 602 and repealing the existing section; also repealing K.S.A. 58-601, 58-602, 58-610, 58- 611, 58-612, 58-613, 58-614, 58-615, 58-616 and 58-617.
Keywords:


Body:

CHAPTER 58

HOUSE BILL No. 2034


An Act concerning the Kansas power of attorney act; amending K.S.A. 2002 Supp. 58a-

602 and repealing the existing section; also repealing K.S.A. 58-601, 58-602, 58-610, 58-


611, 58-612, 58-613, 58-614, 58-615, 58-616 and 58-617.


Be it enacted by the Legislature of the State of Kansas:

New Section 1. Sections 1 through 16, and amendments thereto,

shall be known and may be cited as the Kansas power of attorney act.

New Sec. 2. As used in the Kansas power of attorney act:

(a) ``Attorney in fact'' means an individual, corporation or other legal

entity appointed to act as agent of a principal in a written power of at-

torney.

(b) ``Court'' means the district court.

(c) ``Disabled'' means a person who is wholly or partially disabled as

defined in K.S.A. 77-201, and amendments thereto, or a similar law of

the place having jurisdiction of the person whose capacity is in question.

(d) ``Durable power of attorney'' means a written power of attorney

in which the authority of the attorney in fact does not terminate in the

event the principal becomes disabled or in the event of later uncertainty

as to whether the principal is dead or alive and which complies with

subsection (a) of section 3, and amendments thereto, or is durable under

the laws of any of the following places:

(1) The law of the place where executed;

(2) the law of the place of the residence of the principal when exe-

cuted; or

(3) the law of a place designated in the written power of attorney if

that place has a reasonable relationship to the purpose of the instrument.

(e) ``Legal representative'' means a decedent's personal representa-

tive, a guardian or a conservator.

(f) ``Nondurable power of attorney'' means a written power of attor-

ney which does not meet the requirements of a durable power of attorney.

(g) ``Person'' means an adult individual, corporation or other legal

entity.

(h) ``Personal representative'' means a legal representative as defined

in K.S.A. 59-102, and amendments thereto.

(i) ``Power of attorney'' means a written power of attorney, either

durable or nondurable.

(j) ``Principal's family'' means the principal's parent, grandparent, un-

cle, aunt, brother, sister, son, daughter, grandson, granddaughter and

their descendants, whether of the whole blood or the half blood, or by

adoption, and the principal's spouse, stepparent and stepchild.

(k) ``Third person'' means any individual, corporation or legal entity

that acts on a request from, contracts with, relies on or otherwise deals

with an attorney in fact pursuant to authority granted by a principal in a

power of attorney and includes a partnership, either general or limited,

governmental agency, financial institution, issuer of securities, transfer

agent, securities or commodities broker, real estate broker, title insurance

company, insurance company, benefit plan, legal representative, custo-

dian or trustee.

New Sec. 3. (a) The authority granted by a principal to an attorney

in fact in a written power of attorney is not terminated in the event the

principal becomes wholly or partially disabled or in the event of later

uncertainty as to whether the principal is dead or alive if:

(1) The power of attorney is denominated a ``durable power of attor-

ney;''

(2) the power of attorney includes a provision that states in substance

one of the following:

(A) ``This is a durable power of attorney and the authority of my

attorney in fact shall not terminate if I become disabled or in the event

of later uncertainty as to whether I am dead or alive''; or

(B) ``This is a durable power of attorney and the authority of my

attorney in fact, when effective, shall not terminate or be void or voidable

if I am or become disabled or in the event of later uncertainty as to

whether I am dead or alive''; and

(3) the power of attorney is signed by the principal, and dated and

acknowledged in the manner prescribed by K.S.A. 53-501 et seq., and

amendments thereto.

(b) All acts done by an attorney in fact pursuant to a durable power

of attorney shall inure to the benefit of and bind the principal and the

principal's successors in interest, notwithstanding any disability of the

principal.

(c) (1) A power of attorney does not have to be recorded to be valid

and binding between the principal and attorney in fact or between the

principal and third persons.

(2) A power of attorney may be recorded in the same manner as a

conveyance of land is recorded. A certified copy of a recorded power of

attorney may be admitted into evidence.

(3) If a power of attorney is recorded any revocation of that power

of attorney must be recorded in the same manner for the revocation to

be effective. If a power of attorney is not recorded it may be revoked by

a recorded revocation or in any other appropriate manner.

(4) If a power of attorney requires notice of revocation be given to

named persons, those persons may continue to rely on the authority set

forth in the power of attorney until such notice is received.

(d) A person who is appointed an attorney in fact under a durable

power of attorney has no duty to exercise the authority conferred in the

power of attorney, unless the attorney in fact has agreed expressly in

writing to act for the principal in such circumstances. An agreement to

act on behalf of the principal is enforceable against the attorney in fact

as a fiduciary without regard to whether there is any consideration to

support a contractual obligation to do so. Acting for the principal in one

or more transactions does not obligate an attorney in fact to act for the

principal in subsequent transactions.

(e) The grant of power or authority conferred by a power of attorney

in which any principal shall vest any power or authority in an attorney in

fact, if such writing expressly so provides, shall be effective only upon:

(1) A specified future date; (2) the occurrence of a specified future event;

or (3) the existence of a specified condition which may occur in the future.

In the absence of actual knowledge to the contrary, any person to whom

such writing is presented shall be entitled to rely on an affidavit, executed

by the attorney in fact, setting forth that such event has occurred or

condition exists.

New Sec. 4. (a) A principal may appoint more than one attorney in

fact in one or more powers of attorney and may provide that the authority

conferred on two or more attorneys in fact shall or may be exercised either

jointly or severally or in a manner, with such priority and with respect to

such subjects as is provided in the power of attorney. In the absence of

specification in a power of attorney, the attorneys in fact must act jointly.

(b) The designation of a person not qualified to act as an attorney in

fact for a principal under a power of attorney subjects the person to

removal as attorney in fact but does not affect the immunities of third

persons nor relieve the unqualified person of any duties or responsibilities

to the principal or the principal's successors.

New Sec. 5. (a) A principal may delegate to an attorney in fact in

a power of attorney general powers to act in a fiduciary capacity on the

principal's behalf with respect to all lawful subjects and purposes or with

respect to one or more express subjects or purposes. A power of attorney

with general powers may be durable or nondurable.

(b) If the power of attorney states that general powers are granted to

the attorney in fact and further states in substance that it grants power

to the attorney in fact to act with respect to all lawful subjects and pur-

poses or that it grants general powers for general purposes or does not

by its terms limit the power to the specific subject or purposes set out in

the instrument, then the authority of the attorney in fact acting under

the power of attorney shall extend to and include each and every action

or power which an adult who is nondisabled may carry out through an

agent specifically authorized in the premises, with respect to any and all

matters whatsoever, except as provided in subsection (f) and (g). When

a power of attorney grants general powers to an attorney in fact to act

with respect to all lawful subjects and purposes, the enumeration of one

or more specific subjects or purposes does not limit the general authority

granted by that power of attorney, unless otherwise provided in the power

of attorney.

(c) If the power of attorney states that general powers are granted to

an attorney in fact with respect to one or more express subjects or pur-

poses for which general powers are conferred, then the authority of the

attorney in fact acting under the power of attorney shall extend to and

include each and every action or power, but only with respect to the

specific subjects or purposes expressed in the power of attorney that an

adult who is nondisabled may carry out through an agent specifically au-

thorized in the premises, with respect to any and all matters whatsoever,

except as provided in subsection (f) and (g).

(d) Except as provided in subsections (f) and (g), an attorney in fact

with general powers has, with respect to the subjects or purposes for

which the powers are conferred, all rights, power and authority to act for

the principal that the principal would have with respect to the principal's

own person or property, including property owned jointly or by the en-

tireties with another or others, as a nondisabled adult. Without limiting

the foregoing an attorney in fact with general powers has, with respect to

the subject or purposes of the power, complete discretion to make a

decision for the principal, to act or not act, to consent or not consent to,

or withdraw consent for, any act, and to execute and deliver or accept

any deed, bill of sale, bill of lading, assignment, contract, note, security

instrument, consent, receipt, release, proof of claim, petition or other

pleading, tax document, notice, application, acknowledgment or other

document necessary or convenient to implement or confirm any act,

transaction or decision. An attorney in fact with general powers, whether

power to act with respect to all lawful subjects and purposes, or only with

respect to one or more express subjects or purposes, shall have the power,

unless specifically denied by the terms of the power of attorney, to make,

execute and deliver to or for the benefit of or at the request of a third

person, who is requested to rely upon an action of the attorney in fact,

an agreement indemnifying and holding harmless any third person or

persons from any liability, claims or expenses, including legal expenses,

incurred by any such third person by reason of acting or refraining from

acting pursuant to the request of the attorney in fact. Such indemnity

agreement shall be binding upon the principal who has executed such

power of attorney and upon the principal's successor or successors in

interest. No such indemnity agreement shall protect any third person

from any liability, claims or expenses incurred by reason of the fact that,

and to the extent that, the third person has honored the power of attorney

for actions outside the scope of authority granted by the power of attor-

ney. In addition, the attorney in fact has complete discretion to employ

and compensate real estate agents, brokers, attorneys, accountants and

subagents of all types to represent and act for the principal in any and all

matters, including tax matters involving the United States government or

any other government or taxing entity, including, but not limited to, the

execution of supplemental or additional powers of attorney in the name

of the principal in form that may be required or preferred by any such

taxing entity or other third person, and to deal with any or all third persons

in the name of the principal without limitation. No such supplemental or

additional power of attorney shall broaden the scope of authority granted

to the attorney in fact in the original power of attorney executed by the

principal.

(e) An attorney in fact, who is granted general powers for all subjects

and purposes or with respect to any express subjects or purposes, shall

exercise the powers conferred according to the principal's instructions, in

the principal's best interest, in good faith, prudently and in accordance

with sections 6 and 7, and amendments thereto.

(f) Any power of attorney, whether or not it grants general powers

for all subjects and purposes or with respect to express subjects or pur-

poses, shall be construed to grant power or authority to an attorney in

fact to carry out any of the actions described in this subsection only if the

actions are expressly enumerated and authorized in the power of attorney.

Any power of attorney may grant power or authority to an attorney in fact

to carry out any of the following actions if the actions are expressly au-

thorized in the power of attorney:

(1) To execute, amend or revoke any trust agreement;

(2) to fund with the principal's assets any trust not created by the

principal;

(3) to make or revoke a gift of the principal's property in trust or

otherwise;

(4) to disclaim a gift or devise of property to or for the benefit of the

principal;

(5) to create or change survivorship interests in the principal's prop-

erty or in property in which the principal may have an interest. The in-

clusion of the authority set out in this paragraph shall not be necessary

in order to grant to an attorney in fact acting under a power of attorney

granting general powers with respect to all lawful subjects and purposes

the authority to withdraw funds or other property from any account, con-

tract or other similar arrangement held in the names of the principal and

one or more other persons with any financial institution, brokerage com-

pany or other depository to the same extent that the principal would be

authorized to do if the principal were present, not disabled and seeking

to act in the principal's own behalf;

(6) to designate or change the designation of beneficiaries to receive

any property, benefit or contract right on the principal's death;

(7) to give or withhold consent to an autopsy or postmortem exami-

nation;

(8) to make a gift of, or decline to make a gift of, the principal's body

parts under the uniform anatomical gift act, K.S.A. 65-3209 through 65-

3217, and amendments thereto;

(9) to nominate a guardian or conservator for the principal; and if so

stated in the power of attorney, the attorney in fact may nominate such

attorney in fact's self as such;

(10) to alienate the homestead without the joint consent of husband

and wife when that relationship exists, if the power of attorney specifically:

Gives the attorney in fact the power to sell, transfer and convey the home-

stead in question; gives the legal description and street address of the

property; and states that by the execution of the power of attorney it is

the intention of the parties that the act shall constitute the joint consent

required by Article 15, Section 9 of the Kansas Constitution and the

power of attorney is executed by both the husband and wife in the same

instrument;

(11) to designate one or more substitute or successor or additional

attorneys in fact; or

(12) to delegate any or all powers granted in a power of attorney

pursuant to subsection (a) of section 11, and amendments thereto.

(g) No power of attorney, whether or not it delegates general powers,

may delegate or grant power or authority to an attorney in fact to do or

carry out any of the following actions for the principal:

(1) To make, publish, declare, amend or revoke a will for the prin-

cipal;

(2) to make, execute, modify or revoke a declaration under K.S.A. 65-

28,101 et seq., and amendments thereto, for the principal or to make,

execute, modify or revoke a do not resuscitate directive under K.S.A. 65-

4941, and amendments thereto, for the principal or to make, execute,

modify or revoke a durable power of attorney for health care decisions

pursuant to K.S.A. 58-625, et seq., and amendments thereto, for the prin-

cipal;

(3) to require the principal, against the principal's will, to take any

action or to refrain from taking any action; or

(4) to carry out any actions specifically forbidden by the principal

while not under any disability or incapacity.

(h) A third person may freely rely on, contract and deal with an at-

torney in fact delegated general powers with respect to the subjects and

purposes encompassed or expressed in the power of attorney without

regard to whether the power of attorney expressly identifies the specific

property, account, security, storage facility or matter as being within the

scope of a subject or purpose contained in the power of attorney, and

without regard to whether the power of attorney expressly authorizes the

specific act, transaction or decision by the attorney in fact.

(i) It is the policy of this state that an attorney in fact acting pursuant

to the provisions of a power of attorney granting general powers shall be

accorded the same rights and privileges with respect to the personal wel-

fare, property and business interests of the principal, and if the power of

attorney enumerate some express subjects or purposes, with respect to

those subjects or purposes, as if the principal was personally present and

acting or seeking to act; and any provision of law and any purported

waiver, consent or agreement executed or granted by the principal to the

contrary shall be void and unenforceable.

(j) Sections 1 through 16, and amendments thereto, shall not be con-

strued to preclude any person or business enterprise from providing in a

contract with the principal as to the procedure that thereafter must be

followed by the principal or the principal's attorney in fact in order to

give a valid notice to the person or business enterprise of any modification

or termination of the appointment of an attorney in fact by the principal.

Any such contractual provision for notice shall be valid and binding on

the principal and the principal's successors so long as such provision is

reasonably capable of being carried out.

New Sec. 6. (a) An attorney in fact acting for the principal under

a power of attorney shall clearly indicate the attorney in fact's capacity

and shall keep the principal's property and accounts separate and distinct

from all other property and accounts in a manner to identify the property

and accounts clearly as belonging to the principal.

(b) An attorney in fact holding property for a principal complies with

subsection (a) if the property is held in the name of the principal, in the

name of the attorney in fact as attorney in fact for the principal or in the

name of the attorney in fact as personal custodian for the principal under

the uniform custodial trust law or similar law of any state.

New Sec. 7. (a) An attorney in fact who elects to act under a power

of attorney is under a duty to act in the interest of the principal and to

avoid conflicts of interest that impair the ability of the attorney in fact so

to act. A person who is appointed an attorney in fact under a power of

attorney who undertakes to exercise the authority conferred in the power

of attorney, has a fiduciary obligation to exercise the powers conferred in

the best interests of the principal, and to avoid self-dealing and conflicts

of interest, as in the case of a trustee with respect to the trustee's bene-

ficiary or beneficiaries. In the absence of explicit authorization, the at-

torney in fact shall exercise a high degree of care in maintaining, without

modification, any estate plan which the principal may have in place, in-

cluding, but not limited to, arrangements made by the principal for dis-

position of assets at death through beneficiary designations, ownership by

joint tenancy or tenancy by the entirety, trust arrangements or by will or

codicil. Unless otherwise provided in the power of attorney or in a sep-

arate agreement between the principal and attorney in fact, an attorney

in fact who elects to act shall exercise the authority granted in a power

of attorney with that degree of care that would be observed by a prudent

person dealing with the property and conducting the affairs of another,

except that all investments made on or after July 1, 2003, shall be in

accordance with the provisions of the Kansas uniform prudent investor

act, K.S.A. 58-24a01 et seq., and amendments thereto. If the attorney in

fact has special skills or was appointed attorney in fact on the basis of

representations of special skills or expertise, the attorney in fact has a

duty to use those skills in the principal's behalf.

(b) On matters undertaken or to be undertaken in the principal's

behalf and to the extent reasonably possible under the circumstances, an

attorney in fact has a duty to keep in regular contact with the principal,

to communicate with the principal and to obtain and follow the instruc-

tions of the principal.

(c) If, following execution of a durable power of attorney, a court of

the principal's domicile appoints a conservator, guardian of the estate or

other fiduciary charged with the management of all of the principal's

property or all of the principal's property except specified exclusions, the

attorney in fact is accountable to the fiduciary as well as to the principal.

The fiduciary has the same power to revoke or amend the durable power

of attorney that the principal would have had if the principal were not an

adult with an impairment in need of a guardian or conservator or both as

defined by subsection (a) of K.S.A. 59-3051, and amendments thereto.

(d) A principal may nominate by a power of attorney, a guardian or

conservator, or both, for consideration by the court. If a petition to ap-

point a guardian or conservator, or both, is filed, the court shall make the

appointment in accordance with the principal's most recent nomination

in the power of attorney, so long as the individual nominated is a fit and

proper person.

(e) An attorney in fact shall exercise authority granted by the principal

in accordance with the instrument setting forth the power of attorney,

any modification made therein by the principal or the principal's legal

representative or a court, and the oral and written instructions of the

principal, or the written instructions of the principal's legal representative

or a court.

(f) An attorney in fact may be instructed in a power of attorney that

the authority granted shall not be exercised until, or shall terminate on,

the happening of a future event, condition or contingency, as determined

in a manner prescribed in the instrument.

(g) On the death of the principal, the attorney in fact shall follow the

instructions of the court, if any, having jurisdiction over the estate of the

principal, or any part thereof, and shall communicate with and be ac-

countable to the principal's personal representative, or if none, the prin-

cipal's successors. The attorney in fact shall promptly deliver to and put

in the possession and control of the principal's personal representative or

successors, any property of the principal and copies of any records of the

attorney in fact relating to transactions undertaken in the principal's be-

half that are deemed by the personal representative or the court to be

necessary or helpful in the administration of the decedent's estate.

(h) If an attorney in fact has a property or contract interest in the

subject of the power of attorney or the authority of the attorney in fact

is otherwise coupled with an interest in a person other than the principal,

this section does not impose any duties on the attorney in fact that would

conflict or be inconsistent with that interest.

New Sec. 8. (a) As between the principal and attorney in fact or

successor attorney in fact, and any agents appointed by either of them,

unless the power of attorney is coupled with an interest, the authority

granted in a power of attorney shall be modified or terminated as follows:

(1) On the date shown in the power of attorney and in accordance

with the express provisions of the power of attorney;

(2) when the principal, orally or in writing, or the principal's legal

representative in writing informs the attorney in fact or successor that the

power of attorney is modified or terminated, or when and under what

circumstances it is modified or terminated; or

(3) when a written notice of modification or termination of the power

of attorney is filed by the principal or the principal's legal representative

for record in the office of the register of deeds in the county of the

principal's residence or, if the principal is a nonresident of the state, in

the county of the residence of the attorney in fact last known to the

principal, or in the county in which is located any property specifically

referred to in the power of attorney.

(b) As between the principal and attorney in fact or successor attor-

ney in fact, and any agents appointed by either of them, unless the power

of attorney is coupled with an interest, the authority granted in a power

of attorney shall be terminated as follows:

(1) On the death of the principal, except that if the power of attorney

grants authority under subsection (f)(7) or (f)(8) of section 5, and amend-

ments thereto, the power of attorney and the authority of the attorney in

fact shall continue for the limited purpose of carrying out the authority

granted under either or both of such subsections for a reasonable length

of time after the death of the principal;

(2) when the attorney in fact under a power of attorney is not qual-

ified to act for the principal; or

(3) on the filing of any action for annulment, separate maintenance

or divorce of the principal and the principal's attorney in fact who were

married to each other at or subsequent to the time the power of attorney

was created, unless the power of attorney provides otherwise.

(c) The authority of an attorney in fact, under a power of attorney

that is nondurable, is suspended during any period that the principal is

disabled to the extent that the principal is unable to receive or evaluate

information or to communicate decisions with respect to the subject of

the power of attorney. An attorney in fact exercising authority under a

power of attorney that is nondurable shall not act in the principal's behalf

during any period that the attorney in fact knows the principal is so dis-

abled.

(d) Whenever any of the events described in subsection (a) operate

merely to terminate the authority of the particular person designated as

the attorney in fact, rather than terminating the power of attorney, if the

power of attorney designates a successor or contingent attorney in fact or

prescribes a procedure whereby a successor or contingent attorney in fact

may be designated, then the authority provided in the power of attorney

shall extend to and vest in the successor or contingent attorney in fact in

lieu of the attorney in fact whose power and authority was terminated

under any of the circumstances referred to in subsection (a).

(e) As between the principal and attorney in fact or successor, acts

and transactions of the attorney in fact or successor undertaken in good

faith, in accordance with section 7, and amendments thereto, and without

actual knowledge of the death of the principal or without actual knowl-

edge, or constructive knowledge pursuant to subsection (a)(3), that the

authority granted in the power of attorney has been suspended, modified

or terminated, relieves the attorney in fact or successor from liability to

the principal and the principal's successors in interest.

(f) This section does not prohibit the principal, acting individually,

and the person designated as the attorney in fact from entering into a

written agreement that sets forth their duties and liabilities as between

themselves and their successors, and which expands or limits the appli-

cation of this act, with the exception of those acts enumerated in subsec-

tion (g) of section 5, and amendments thereto.

(g) As between the principal and any attorney in fact or successor, if

the attorney in fact or successor undertakes to act, and if in respect to

such act, the attorney in fact or successor acts in bad faith, fraudulently

or otherwise dishonestly, or if the attorney in fact or successor intention-

ally acts after receiving actual notice that the power of attorney has been

revoked or terminated, and thereby causes damage or loss to the principal

or to the principal's successors in interest, such attorney in fact or suc-

cessor shall be liable to the principal or to the principal's successors in

interest, or both, for such damages, together with reasonable attorney

fees, and punitive damages as allowed by law.

New Sec. 9. (a) A third person, who is acting in good faith, without

liability to the principal or the principal's successors in interest, may rely

and act on any power of attorney executed by the principal. A third per-

son, with respect to the subjects and purposes encompassed by or sepa-

rately expressed in the power of attorney, may rely and act on the instruc-

tions of or otherwise contract and deal with the principal's attorney in

fact or successor attorney in fact and, in the absence of actual knowledge,

as defined in subsection (c), is not responsible for determining and has

no duty to inquire as to any of the following:

(1) The authenticity of a copy of a power of attorney furnished by

the principal's attorney in fact or successor;

(2) the validity of the designation of the attorney in fact or successor;

(3) whether the attorney in fact or successor is qualified to act as an

attorney in fact for the principal;

(4) the propriety of any act of the attorney in fact or successor in the

principal's behalf, including, but not limited to, whether or not an act

taken or proposed to be taken by the attorney in fact, constitutes a breach

of any duty or obligation owed to the principal, including, but not limited

to, the obligation to the principal not to modify or alter the principal's

estate plan or other provisions for distributions of assets at death, as pro-

vided in subsection (a) of section 7, and amendments thereto;

(5) whether any future event, condition or contingency making ef-

fective or terminating the authority conferred in a power of attorney has

occurred;

(6) whether the principal is disabled or has been adjudicated disa-

bled;

(7) whether the principal, the principal's legal representative or a

court has given the attorney in fact any instructions or the content of any

instructions, or whether the attorney in fact is following any instructions

received;

(8) whether the authority granted in a power of attorney has been

modified by the principal, a legal representative of the principal or a court;

(9) whether the authority of the attorney in fact has been terminated,

except by an express provision in the power of attorney showing the date

on which the power of attorney terminates;

(10) whether the power of attorney, or any modification or termina-

tion thereof, has been recorded, except as to transactions affecting real

estate;

(11) whether the principal had legal capacity to execute the power of

attorney at the time the power of attorney was executed;

(12) whether, at the time the principal executed the power of attor-

ney, the principal was subjected to duress, undue influence or fraud, or

the power of attorney was for any other reason void or voidable, if the

power of attorney appears to be regular on its face;

(13) whether the principal is alive;

(14) whether the principal and attorney in fact were married at or

subsequent to the time the power of attorney was created and whether

an action for annulment, separate maintenance or divorce has been filed

by either party; or

(15) the truth or validity of any facts or statements made in an affi-

davit of the attorney in fact or successor with regard to the ability or

capacity of the principal, the authority of the attorney in fact or successor

under the power of attorney, the happening of any event or events vesting

authority in any successor or contingent attorney in fact, the identity or

authority of a person designated in the power of attorney to appoint a

substitute or successor attorney in fact or that the principal is alive.

(b) A third person, in good faith and without liability to the principal

or the principal's successors in interest, even with knowledge that the

principal is disabled, may rely and act on the instructions of or otherwise

contract and deal with the principal's attorney in fact or successor attorney

in fact acting pursuant to authority granted in a durable power of attorney.

(c) A third person that conducts activities through employees shall

not be charged under this act with actual knowledge of any fact relating

to a power of attorney, nor of a change in the authority of an attorney in

fact, unless the information is received at a home office or a place where

there is an employee with responsibility to act on the information, and

the employee has a reasonable time in which to act on the information

using the procedures and facilities that are available to the third person

in the regular course of its operations.

(d) A third person, when being requested to engage in transactions

with a principal through the principal's attorney in fact, may: (1) Require

the attorney in fact to provide specimens of the attorney in fact's signature

and any other information reasonably necessary or appropriate in order

to facilitate the actions of the third person in transacting business through

the attorney in fact; (2) require the attorney in fact to indemnify the third

person against forgery of the power of attorney, by bond or otherwise. If

the power of attorney is durable as defined in subsection (a) of section 3,

and amendments thereto, and if either the principal or the attorney in

fact seeking to act is and has been a resident of this state for at least two

years, and if the attorney in fact has executed in the name of the principal

and delivered to the third person an indemnity agreement reasonably

satisfactory in form to such third person, no such bond shall be required;

and (3) prescribe the place and manner in which the third person will be

given any notice respecting the principal's power of attorney and the time

in which the third person has to comply with any notice.

New Sec. 10. (a) As between the principal and third persons, the

authority granted in a power of attorney shall terminate on the date of

termination, if any, set out in the power of attorney or on the date when

the third person acquires actual knowledge of the death of the principal

or that the authority granted in the power of attorney has been suspended,

modified or terminated.

(b) As between the principal and third persons, the acts and trans-

actions of an attorney in fact are binding on the principal and the prin-

cipal's successors in interest in any situation in which a third person is

entitled to rely under section 9, and amendments thereto.

(c) This section shall not prohibit the principal, acting individually,

and a third person from entering into a written agreement that sets forth

their duties and liabilities as between themselves and their successors,

and which expands or limits the application of this act, except that no

agreement shall limit or restrict the right of the principal to act with

respect to the third person through an attorney in fact appointed in a

power of attorney.

New Sec. 11. (a) If the principal has expressly authorized such del-

egation pursuant to subsection (f) of section 5, and amendments thereto,

an attorney in fact or successor from time to time may revocably delegate

any or all of the powers granted in a durable power of attorney to one or

more qualified persons, subject to any directions or limitations of the

principal expressed in the durable power of attorney, but the attorney in

fact making the delegation shall remain responsible to the principal for

the exercise or nonexercise of the powers delegated.

(b) The principal in a durable power of attorney may revocably: (1)

Name one or more qualified persons as successor attorneys in fact to

exercise the authority granted in the durable power of attorney in the

order named in the event a prior named attorney in fact resigns, dies,

becomes disabled, is not qualified to act or refuses to act; and (2) grant

a power to another person, designated by name, by office or by function,

including the initial and any successor attorneys in fact, whereby there

may be revocably named at any time one or more successor attorneys in

fact.

(c) A delegated or successor attorney in fact need not indicate such

attorney in fact's capacity as a delegated or successor attorney in fact.

(d) If there is no attorney in fact or successor designated in a durable

power of attorney who is willing, able and available to act, the court in

lieu of appointing a conservator may appoint any adult person or financial

institution as successor attorney in fact to act pursuant to the disabled

principal's durable power of attorney, with or without bond and with or

without court supervision, upon such terms and conditions as the court

may require. None of the actions described in this subsection shall be

taken by the court until after hearing upon reasonable notice to all persons

identified in a verified statement supplied by the petitioner who is re-

questing such action identifying the immediate relatives of the principal

and any other persons known to the petitioner to be interested in the

welfare of the principal. Except that in the event of an emergency as

determined by the court, the court, without notice, may enter such tem-

porary order as seems proper to the court, but no such temporary order

shall be effective for more than 30 days unless extended by the court after

hearing on reasonable notice to the persons identified as herein provided.

New Sec. 12. Subject to the provisions of the power of attorney and

any separate agreement, an attorney in fact is entitled to reasonable com-

pensation for services rendered to the principal as attorney in fact and

reimbursement for reasonable expenses incurred as a result of acting as

attorney in fact for the principal.

New Sec. 13. (a) The principal may petition the court for an ac-

counting by the principal's attorney in fact or the legal representative of

the attorney in fact. If the principal is disabled or deceased, a petition for

accounting may be filed by the principal's legal representative, an adult

member of the principal's family or any person interested in the welfare

of the principal.

(b) Any requirement for an accounting may be waived or an account-

ing may be approved by the court without hearing, if the accounting is

waived or approved by a principal who is not disabled, or by a principal

whose legal capacity has been restored, or by all creditors and distributees

of a deceased principal's estate whose claims or distributions theretofore

have not been satisfied in full. The approval or waiver shall be in writing,

signed by the affected persons and filed with the court.

(c) For the purposes of subsection (b), a legal representative or a

person providing services to the principal's estate shall not be considered

a creditor of the principal's estate. No express approval or waiver shall be

required from the legal representative of a disabled principal if the prin-

cipal's legal capacity has been restored, or from the personal represen-

tative of a deceased principal's estate, or from any other person entitled

to compensation or expense for services rendered to a disabled or de-

ceased principal's estate, unless the principal or the principal's estate is

unable to pay in full the compensation and expense to which the person

rendering the services may be entitled.

(d) The principal, the principal's attorney in fact, an adult member

of the principal's family or any person interested in the welfare of the

principal may petition the district court in the county where the principal

is then residing to determine and declare whether a principal, who has

executed a power of attorney, is a disabled person.

(e) If the principal is a disabled person, on petition of the principal's

legal representative, an adult member of the principal's family or any

interested person, including a person interested in the welfare of the

principal, for good cause shown, the court may:

(1) Order the attorney in fact to exercise or refrain from exercising

authority in a durable power of attorney in a particular manner or for a

particular purpose;

(2) modify the authority of an attorney in fact under a durable power

of attorney;

(3) declare suspended a power of attorney that is nondurable;

(4) terminate a durable power of attorney;

(5) remove the attorney in fact under a durable power of attorney;

(6) confirm the authority of an attorney in fact or a successor attorney

in fact to act under a durable power of attorney; and

(7) issue such other orders as the court finds will be in the best in-

terest of the disabled principal, including appointment of a conservator

for the principal pursuant to K.S.A. 59-3050, et seq., and amendments

thereto.

(f) In addition to any other remedies available under law, if after

notice and hearing, the court determines that there has been a showing

that the principal is a disabled person and that the attorney in fact has

breached such attorney in fact's fiduciary duty to the principal or that

there is a reasonable likelihood that such attorney in fact may do so in

the immediate future, the court, in its discretion, may issue an order that

some or all of the authority granted by the durable power of attorney be

suspended or modified, and that a different attorney in fact be authorized

to exercise some or all of the powers granted by the durable power of

attorney. Such attorney in fact may be designated by the court. The court

may require any person petitioning for any such order to file a bond in

such amount and with such sureties as required by the court to indemnify

either the attorney in fact who has been acting on behalf of the principal

or the principal and the principal's successors in interest for the expenses,

including attorney fees, incurred by any such persons with respect to such

proceeding. The court, after hearing, may allow payment or enter judg-

ment for any such amount in the manner as provided by subsection (f)

of section 15, and amendments thereto. None of the actions described in

this subsection shall be taken by the court until after hearing upon rea-

sonable notice to all persons identified in a verified statement supplied

by the petitioner who is requesting such action identifying the immediate

relatives of the principal and any other persons known to the petitioner

to be interested in the welfare of the principal. Except that in the event

of an emergency as determined by the court, the court, without notice,

may enter such temporary order as seems proper to the court, but no

such temporary order shall be effective for more than 30 days unless

extended by the court after hearing on reasonable notice to the persons

identified as herein provided.

(g) If a power of attorney is suspended or terminated by the court or

the attorney in fact is removed by the court, the court may require an

accounting from the attorney in fact and order delivery of any property

belonging to the principal and copies of any necessary records of the

attorney in fact concerning the principal's property and affairs to a suc-

cessor attorney in fact or the principal's legal representative.

(h) In a proceeding under this act or in any other proceeding, or upon

petition of an attorney in fact or successor, the court may:

(1) Require or permit an attorney in fact under a power of attorney

to account;

(2) authorize the attorney in fact under a power of attorney to enter

into any transaction, or approve, ratify, confirm and validate any trans-

action entered into by the attorney in fact that the court finds is, was or

will be beneficial to the principal and which the court has power to au-

thorize for a conservator pursuant to K.S.A. 59-3050 et seq., and amend-

ments thereto; and

(3) relieve the attorney in fact of any obligation to exercise authority

for a disabled principal under a durable power of attorney.

(i) Unless previously barred by adjudication, consent or limitation,

any cause of action against an attorney in fact or successor for breach of

duty to the principal shall be barred as to any principal who has received

an account or other statement fully disclosing the matter unless a pro-

ceeding to assert the cause of action is commenced within two years after

receipt of the account or statement by the attorney in fact or, if the

principal is a disabled person, by a guardian or conservator of the disabled

person's estate. If a disabled person has no guardian or conservator of

the disabled person's estate at the time an account or statement is pre-

sented, then the cause of action shall not be barred until one year after

the removal of the principal's disability or incapacity, one year after the

appointment of a conservator for the principal or one year after the death

of the principal. The cause of action thus barred does not include any

action to recover from an attorney in fact or successor for fraud, misrep-

resentation or concealment related to the settlement of any transaction

involving the agency relationship of the attorney in fact with the principal.

New Sec. 14. (a) This act applies to the acts and transaction in this

state of attorneys in fact under powers of attorney executed in this state

or by residents of this state. Further, this act applies to acts and trans-

actions of attorneys in fact in this state or outside this state under powers

of attorney that refer to the power of attorney law of Kansas in the in-

strument creating the power of attorney, if any of the following conditions

are met:

(1) The principal or attorney in fact was a resident of this state at the

time the power of attorney was executed;

(2) the powers and authority conferred relate to property, acts or

transactions in this state;

(3) the acts and transactions of the attorney in fact or successor oc-

curred or were to occur in this state;

(4) the power of attorney was executed in this state; or

(5) there is otherwise a reasonable relationship between this state and

the subject matters of the power of attorney.

The power of attorney so created remains subject to this act despite a

subsequent change in residence of the principal or the attorney in fact

and any successor, or the removal from this state of property which was

the subject of the power of attorney.

(b) A person who acts as an attorney in fact or successor pursuant to

a power of attorney governed by this act is subject to personal jurisdiction

in this state with respect to matters relating to acts and transactions of

the attorney in fact or successor performed in this state, performed for a

resident of this state or affecting property in this state.

(c) A durable power of attorney that purports to have been made

under the provisions of the durable power of attorney act of another state

is governed by the law of that state and, if durable where executed, is

durable and may be carried out and enforced in this state.

(d) A power of attorney executed by a resident of another state, may

authorize the carrying out in this state of all acts permitted to be delegated

to an attorney in fact by the laws of the state of the residence of the

principal, the laws of the state where the power of attorney is executed

or the laws of this state, whichever law is most favorable toward author-

izing such delegation, and is durable if so designated either under the

laws of this state, under the laws of the state of residence of the principal

or under the laws of the state where the power of attorney is executed.

New Sec. 15. The repeal of the uniform durable power of attorney

act, K.S.A. 58-610 through 58-617 and the repeal of K.S.A. 58-601 and

58-602, shall not affect the validity of powers of attorney created under

those sections, the validity of the acts and transactions of attorneys in fact

under authority granted in powers of attorney executed under those sec-

tions, or the duties of attorneys in fact under powers of attorney executed

under those sections.

New Sec. 16. The Kansas power of attorney act adopts by reference

50 U.S.C. 591 of the soldiers and sailors civil relief act.

Sec. 17. K.S.A. 2002 Supp. 58a-602 is hereby amended to read as

follows: 58a-602. (a) Unless the terms of a trust expressly provide that

the trust is irrevocable, the settlor may revoke or amend the trust. This

subsection does not apply to a trust created under an instrument executed

before the effective date of this code January 1, 2003.

(b) If a revocable trust is created or funded by more than one settlor:

(1) To the extent the trust consists of community property, the trust

may be revoked by either spouse acting alone but may be amended only

by joint action of both spouses; and

(2) to the extent the trust consists of property other than community

property, each settlor may revoke or amend the trust with regard to the

portion of the trust property attributable to that settlor's contribution.

(c) The settlor may revoke or amend a revocable trust:

(1) By substantial compliance with a method provided in the terms

of the trust; or

(2) if the terms of the trust do not provide a method or the method

provided in the terms is not expressly made exclusive, by:

(A) A later will or codicil that expressly refers to the trust or specif-

ically devises property that would otherwise have passed according to the

terms of the trust; or

(B) any other method manifesting clear and convincing evidence of

the settlor's intent.

(d) Upon revocation of a revocable trust, the trustee shall deliver the

trust property as the settlor directs.

(e) A settlor's powers with respect to revocation, amendment, or dis-

tribution of trust property may be exercised by an agent under a power

of attorney only to the extent expressly authorized by the terms of the

trust or the power of attorney.

(f) A conservator of the settlor may exercise a settlor's powers with

respect to revocation, amendment, or distribution of trust property only

with the approval of the court supervising the conservatorship.

(g) A trustee who does not know that a trust has been revoked or

amended is not liable to the settlor or settlor's successors in interest for

distributions made and other actions taken on the assumption that the

trust had not been amended or revoked.

Sec. 18. K.S.A. 58-601, 58-602, 58-610, 58-611, 58-612, 58-613, 58-

614, 58-615, 58-616 and 58-617 and K.S.A. 2002 Supp. 58a-602 are

hereby repealed.

Sec. 19. This act shall take effect and be in force from and after its

publication in the statute book.

Approved April 14, 2002.


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Date Composed: 10/29/2003 Date Modified: 10/29/2003