ME Senate Paper 507

Legislation

State: Maine
Signed: June 08, 2009

Effective: July 01, 2009
Chapter: 292

Summary

Maine enacts the Uniform Power of Attorney Act (UPOAA). When 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 requires a power of attorney to be notarized, and a court will presume the signature to be genuine if it is acknowledged before a Notary or an officer authorized to take acknowledgments.

Affects

Repeals Title 18-A Sections 501-510, creates Title 18-A Sections 901-964 and amends Title 22 Sections 1711-C and 8621 of the Maine Revised Statutes Annotated.

Changes

Allows a principal to sign a power of attorney or to direct another person to sign the power of attorney 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.
Requires a duly executed power of attorney to be acknowledged before a Notary Public 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.
Grants a presumption of genuineness to the power of attorney if it is acknowledged before a Notary or other officer authorized to take acknowledgments.
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.
Prescribes a statutory power of attorney form.

Analysis

The Uniform Law Commission first incorporated the concept of a “power of attorney” in the 1969 Uniform Probate Code, revising it again in 1987. Originally viewed as an inexpensive method of surrogate decision making for people of modest means, the durable power of attorney is now widely used by Americans for incapacity planning as well as convenience. The Uniform Power of Attorney Act (2006) (UPOAA), clarifies and modernizes this now largely divergent law. While the statute comprehensively addresses many issues related to powers of attorney, it requires a power of attorney to be acknowledged before a Notary or other officer authorized to take acknowledgments and grants a presumption of genuineness to an acknowledged power of attorney. Notably, the Act does not apply to a power to make health care decisions, leaving this to other applicable law.

Requiring notarization of powers of attorney and the resultant presumptions of genuineness conferred upon notarized documents such as powers of attorney show how important and relevant Notaries and their official certifications continue to be.

A Notary who is asked to take the acknowledgment of a power of attorney should know that the Act allows a principal to sign the power of attorney, or to direct another person to sign the power of attorney in the principal's conscious presence.

Read Senate Paper 507.