CO House Bill 09-1198

Legislation

State: Colorado
Signed: April 27, 2009

Effective: April 27, 2009
Chapter: 106

Summary

Colorado enacts the Uniform Power of Attorney Act (UPOAA). If a power of attorney is presented for notarization, a Notary will need to know that a signer may sign the power of attorney or may direct another person to sign it for him or her. The Act doesn’t require a power of attorney to be notarized, but a court will presume the signature to be genuine if it is acknowledged before a Notary or an officer authorized to take acknowledgments.

Affects

Amends Article 14 of Title 15 of Colorado Revised Statutes.

Changes

Allows a power of attorney to be signed by the principal, or by another person at the direction of the principal and in the principal's conscious presence.
Defines “electronic” and “sign” and permits a power of attorney document to be signed using electronic means.
Defines “acknowledged” to mean purportedly verified before a Notary Public or other individual authorized to take acknowledgements.
Clarifies that the Act applies to all power of attorney documents except (a) a power to the extent it is coupled with an interest in the subject of the power, including a power given to or for the benefit of a creditor in connection with a credit transaction; (b) a power to make health care decisions; (c) a proxy or other delegation to exercise voting rights or management rights with respect to an entity; and (d) a power created on a form prescribed by a government or governmental subdivision, agency or instrumentality for a governmental purpose.
Grants a presumption of genuineness to a power of attorney if it is acknowledged before a Notary or other officer authorized to take acknowledgments.
Clarifies that a photocopy or electronically transmitted copy of an original power of attorney has the same effect as the original.
Clarifies that a person may rely upon the presumption of genuineness of a power of attorney if the person in good faith accepts an acknowledged power of attorney without actual knowledge that the signature is not genuine.
Clarifies that a person may rely upon the power of attorney as if the power of attorney were genuine, valid and still in effect, the agent’s authority were genuine, valid and still in effect and the agent had not exceeded and had properly exercised the authority if the person accepts an acknowledged power of attorney without actual knowledge that the power of attorney is void, invalid or terminated, that the purported agent’s authority is void, invalid or terminated or that the agent is exceeding or improperly exercising the agent’s authority.
States the conditions under which a person must accept an acknowledged power of attorney.
Prescribes a statutory power of attorney form.

Analysis

Earlier this year Colorado enacted the Uniform Power of Attorney Act (UPOAA). The Uniform Power of Attorney Act is a comprehensive uniform statute that replaces previous laws governing powers of attorney in Colorado. The UPOAA is important for Notaries in three key respects. First, the Act allows a principal to sign a power of attorney or direct another person to sign it under direction by the principal and in the principal's conscious presence. Second, it allows a power of attorney document to be signed and notarized electronically. Third, the Act grants a presumption of genuineness to a power of attorney that is acknowledged before a Notary or other officer authorized to take acknowledgments. The Act does not specifically require a power of attorney to be acknowledged, but by granting the presumption of genuineness, it strongly encourages the notarization of a power. The presumption of genuineness protects a person who in good faith accepts an acknowledged power of attorney without knowledge that it contains a forged signature or a latent defect in the acknowledgment and promotes acceptance of powers of attorney, a major goal of the Act. This presumption does not apply to a power of attorney that is simply signed by the principal without being acknowledged.

Read House Bill 09-1198.