The remedies under this part 7 are not exclusive and do not abrogate any right or remedy under the law of this state other than this part 7.
Source: L. 2009: Entire part added, (HB 09-1198), ch. 106, p. 396, � 1, effective April 9.
SUBPART 2
AUTHORITY
OFFICIAL GENERAL COMMENT
Subpart 2 is based in part on the predecessor Uniform Statutory Form Power of Attorney Act, approved in 1988. It provides the default statutory construction for authority granted in a power of attorney. Sections 15-14-727 through 15-14-740 describe authority with respect to various subject matters. These descriptions may be incorporated by reference in the optional statutory form (Section 15-14-741) or in an individually drafted power of attorney. Incorporation is accomplished either by referring to the descriptive term for the subject or by providing a citation to the section in which the authority is described (Section 15-14-725). A principal may also modify anyauthority incorporated by reference (Section 15-14-725(3)). Section 15-14-726 supplements Sections 15-14-727 through 15-14-740 by providing general terms of construction that apply to all grants of authority under those sections unless otherwise indicated in the power of attorney.
Most of the language in Sections 15-14-727 through 15-14-739 of Subpart 2 comes directly from the Uniform Statutory Form Power of Attorney Act. The language has been revised where necessary to reflect modern custom and practice. Where significant changes have been made, they are noted in a comment to the relevant section. Ingeneral, there are two important differences between the statutory treatment of authority in this Act and in the Uniform Statutory Form Power of Attorney Act. First, this Act includes a section that provides a default rule for the parameters of gift making authority (Section 15-14-740). Second, this Act identifies specific acts that may be authorized only by an express grant in the power of attorney (Section15-14-724(1)). Express authorization for the acts listed in Section 15-14-724(1) is required because of the risk those acts pose to the principal's property and estate plan. The purpose of Section 15-14-724(1) is to make clear that authority for these acts may not be inferred from a grant of general authority.
15-14-724. Authority that requires specific grant - grant of general authority. (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, amend, revoke, or terminate an inter vivos trust;
(b) Make a gift;
(c) Create or change rights of survivorship;
(d) Create or change a beneficiary designation;
(e) Delegate 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:
(I) A power held by the principal in a fiduciary capacity that the principal has the authority to delegate;
(II) A power to nominate, appoint, or remove a fiduciary or to consent, veto, or otherwise participate in the designation or changing of a fiduciary; or
(III) A power to direct a fiduciary in the exercise of a power of the fiduciary with respect to property subject to the fiduciary relationship, including, but not limited to, a power to direct investments, or to consent, veto, or otherwise participate in controlling the exercise of such a power.
(h) Disclaim or release property or a power of appointment;
(i) Except for the exercise of a general power of appointment for the benefit of the principal, to the extent that the agent is authorized as provided in section 15-14-734, or for the benefit of persons other than the principal, to the extent that the agent is authorized to make gifts as provided in section 15-14-740, exercise a power of appointment; or
(j) Except with respect to an entity owned solely by the principal, exercise powers, rights, or authority as a partner, member, or manager of a partnership, limited liability company, or other entity that the principal may exercise on behalf of the entity and has authority to delegate.
(2) Notwithstanding a grant of authority to do an act described in subsection (1) of this section, unless the power of attorney otherwise provides, an agent that is not an ancestor, spouse, or descendant of the principal may 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.
(3) Subject to subsections (1), (2), (4), and (5) of this 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 sections 15-14-727 to 15-14-739.
(4) Unless the power of attorney otherwise provides, a grant of authority to make a gift is subject to section 15-14-740.
(5) Subject to subsections (1), (2), and (4) of this section, if the subjects over which authority is granted in a power of attorney are similar or overlap, the broadest authority controls.
(6) 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.
(7) An act performed by an agent pursuant to a power of attorney has 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.
Source: L. 2009: Entire part added, (HB 09-1198), ch. 106, p. 396, � 1, effective April 9. L. 2014: (1)(g)(I) amended, (HB 14-1322), ch. 296, p. 1236, � 8, effective August 6.