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©2024 Edition.
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This index is in these sections:
Overarching Policy Considerations
Definitions
| --- | --- | --- | --- | --- | --- | --- |
|---|---|---|---|---|---|---|
| Texas (durable Powers of Attorney only) | California | New York | Florida | Illinois | Pennyslvania | |
| purpose | NEP | NEP | NEP | NEP | 2-1 | NEP |
| requirement to construe to achieve national uniformity | 751.003 | NEP | NEP | NEP | NEP | NEP |
| express (partial but substantial) extension of application of legislation to also apply to agents for non-commercial purposes | NEP | 4123 | NEP | 709.2201(c) | 2-3(a) | NEP |
| entitlement to define arrangements however the principal sees fit | NEP | NEP | NEP | NEP | 2-4(a) | NEP |
| --- | --- | --- | --- | --- | --- | --- |
|---|---|---|---|---|---|---|
| Texas (durable Powers of Attorney only) | California | New York | Florida | Illinois | Pennyslvania | |
| definition of agent | 751.002 | 4014 | 5-1501 | 709.2102 | 2-3 | 5601(f) |
| corporate/ commercial entity agent | 4010; 4014; 56 | 5-1501 | 709.2102 | 2-3(a); 2-3(e) |
5607 | |
| definition of durable Power of Attorney | 751.0015; 751.024 | 4018 | 5-1501A | 709.2102 | NEP | 5604(a); 5601.1 |
| definition of Power of Attorney | only durable Power of Attorney defined | 4022 | 5-1501(j) | 709.2102 | ||
| definition of non-statutory Power of Attorney | NEP | NEP | 5-1501 | NEP | NEP | NEP |
| definition of capacity/incapacity/ incapacitated | 751.00201 | 811 | 5-1501 | 709.2102 | 2-3(c-5) | Chapter 55 |
| definition of principal | 751.0015 | 4026 | 5-1501 | 709.2102 | 2-3 | |
| Power of Attorney presumed durable | NEP | NEP | 5-1501A(1) | NEP | 2-5 | 5601.1 |
| definition of springing Power of Attorney | not expressly defined | 4030 | not expressly defined | not expressly defined | not expressly defined | not expressly defined |
| definition of third party/third person | NEP | 4034 | 5-1501(p) | 709.2102 | NEP | NEP |
| definition of agency | NEP | NEP | NEP | NEP | 2-3 | NEP |
| definition of compensation | NEP | NEP | 5-1501 | NEP | NEP | NEP |
| definition of financial institution | NEP | NEP | 5-1501 | 709.2102 | NEP | NEP |
| definition of monitor | NEP | NEP | 5-1501 | NEP | NEP | NEP |
| definition of sign | NEP | NEP | 5-1501 | 709.2102 | NEP | NEP |
| --- | --- | --- | --- | --- | --- | --- |
|---|---|---|---|---|---|---|
| application of legislation/ carveouts | 751.0015 | 4050 | 5-1501; 5-1501C | 709.2103 | 2-4 | 5601(e.1) |
| application of other legislation | NEP | 4051 | NEP | NEP | NEP | NEP |
| --- | --- | --- | --- | --- | --- | --- |
| global provision that other principles apply | 751.106 | 4231.5 | NEP | 709.2301 | NEP | 5612 |
| Non-Commercial Affairs | | | | | | |
| inclusion/exclusion of provisions with respect to non-commercial affairs | NEP | 4123 | NEP | 709.2201(c) | 2-3(a) | 5601(e.2) |
| Interstate | | | | | | |
| interstate Powers of Attorney | 709.2106 | 4052; 4053 | 5-1512 | 709.2106(3); 709.2107 | 2-10.5 | 5611; 5613 |
| Military | | | | | | |
| Military Powers of Attorney | 751.0023 | | | 709.2106(4) | | 5611 |
| Non-qualifiable Provisions | | | | | | |
| non-qualifiable provisions clause | | 4101 | | | | |
| Execution Requirements | | | | | | |
| execution requirements | | 4101; 4121 | 5-1501B | | | |
| Requirements | | | | | | |
| requirements as to form & content | 751.0021; 751.023 | 4102; 4121; 4128 | 5-1501B | | | 5601(b);
5601(c) |
| requirements as to execution by principal & witnessing | | 4121; 4122 | 5-1501B | 709.2105 | 3-3.6 | 5601(b) |
| standard ‘warning type’ notices | | 4128 | | | 2-8; 2-10.3 | |
| requirement for agent to execute special acknowledgement | | | | | | 5601(d) |
| required wording for Durable Power of Attorney | | 4124 | | 709.2104 | | |
| Effective Date | | | | | | |
| effective date | | | 5-1501B | | | |
| Assumptions | | | | | | |
| entitlement to assume signatures genuine | 751.022 | | | | | 5608(c) |
| Non-Statutory Designs | | | | | | |
| entitlement to use other designs | | | 5-1501B | | | |
| Principal | | | | | | |
| qualification of principal | | 4120 | 5-1501(k) | | | |
| Agent | | | | | | |
| agent qualifications | | 4200 | 5-1501(a); 5-1501(i); 5-1508 | 709.2105 | | |
| unqualified agents | | 4201 | 5-1508 | | | |
| number of agents/multiple agents | 751.021 | 4202 | 5-1501B | 709.2111 | 2-10.5 | 5602(b) |
| emergencies | | 4202 | | | 2-10.5 | |
| successor agents | | 4203 | 5-1508 | 709.2111 | 2-10.3 | 5602(b) |
| successor agent qualifications | 751.023 | | 5-1508 | | | |
| authority of successor agent | | | 5-1508 | | | |
| liability of agent generally | | | | | 2-4(a) | |
| liability of successor agent for act of agent | | 4203 | | | 2-10.3 | |
| liability for acts of other agents | | | | | 2-10.3 | |
| liability regarding unavailability of agent | | | | | 2-10.3 | |
| compensation and expenses | 751.024 | 4204 | 5-1506 | 709.2112 | 3-3 | 5609 |
| sub-agency | 751.031(b)(5) | 4205 | 5-1513 | 709.2114(b) | 3-3 | 5602(b) |
| agent liability/non-liability for acts of sub-agent | | 4205 | | | | 5601.3(c) |
| agent may delegate certain tasks to co-agent | | | | 709.2111(6) | | |
| resignation | | 4207 | 5-1505 | 709.2118 | | |
| method for executing documents | | | 5-1507 | | | |
| obligation to act | | 4230; 4266 | | | 2-7; 3-4 | |
| standard of care | | 4231 | 5-1505 | 709.2114 | 2-7 | 5601.3(b) |
| standard of care for professional | | 4231; 4237 | | 709.2114 | | 5601.3(c) |
| liability of agent | 751.006 | 4231.5 | | 709.2111;
709.2114;
709.2115;
709.2117 | 2-7; 2-10; 2-10.5 | 5601.3(c) |
| express exclusion of liability solely because agent benefits or has conflict | | | | | | 5601.3(c) |
| Protector | | | | | | |
| protector | §751.023(b) | 4203 | | | 2-10.3 | 5602(b)(3) |
| Monitors | | | | | | |
| monitor | | | 5-1509 | | | |
| Resignation | | | | | | |
| resignation | | 4207 | 5-1505 | 709.2118 | | |
| Acceptance of Appointment | | | | | | |
| acceptance of appointment | 751.023 | | | 709.2113 | | |
| Authority | | | | | | |
| general authority | 751.031 | 4261 | 5-1502N | 709.2201 | | 5601.4(c) |
| nature of limited authority | | 4262 | | | | |
| extension of authority to agents | 751.005 | | | | | |
| Tasks | | | | | | |
| authorizable tasks | | 4123 | | 709.2201; 709.2208 | | |
| excluded tasks | | | | 709.2201 | | |
| inclusion of health, lifestyle or welfare decisions | | 4123 | | 709.2201(c) | | |
| special & hot tasks | 751.031; 751.032; 751.033 | 4264; 4465 | 5-1514 | 709.2202 | 3-4 | 5601.4(a)/
5601.4(b);
5601.4(d);
5601.4(d.1);
5602; 5603 |
| incorporation of statutory tasks into Power of Attorney by mere reference | 751.034 | | | | | |
| certain special or hot tasks where authorized to be construed in accordance with legislation unless Power of Attorney provides otherwise | | | | | | 5601(a) |
| construction of tasks in Statutory Power of Attorney | 752.101 - 752.1145; 752.115 | 4450-4463 | 5-1502A | | 3-4 | 5603 |
| Exclusions | | | | | | |
| express prohibition on creation or alteration of will | | 4265 | | | | |
| Signing on Behalf of Principal | | | | | | |
| principal unable to sign | | | | 709.2105 | | 5601(b) |
| Binding Effect | | | | | | |
| binding nature of agent's act | 751.051 | 4125 | 5-1501A | 709.2201 | 2-6 | 5601.4(g);
5604(b) |
| Guardian/Conservator | | | | | | |
| nominate conservator or guardian in Durable Power of Attorney | | 4126 | | | | 5604(c) |
| relationship with conservator/guardian | 751.052; 751.133 | 4206 | 5-1501A | | | 5604(c) |
| Lapse of Time | | | | | | |
| lapse of time | §751.132(b) | 4127 | 5-1504 | | 2-5 | 5604(b) |
| Springing Power of Attorney | | | | | | |
| springing Powers of Attorney and right to declare contingency occurred | | 4030; 4129 | 5-1501B | 709.2108(3) | 2-4 | 5604(a) |
| Limitations | | | | | | |
| | | | | | 2-4 | |
| Inconsistencies | | | | | | |
| inconsistency between multiple Powers of Attorney | | 4130 | | | | |
| overlapping tasks | 751.031 | | | 709.2201 | | 5601.4(e) |
| Amendment | | | | | | |
| modification | | 4150 | 5-1503 | | 2-4(a); 2-5 | |
| Revocation | | | | | | |
| revocation | | 4151 | 5-1511 | 709.2110 | 2-4(a) | 5605 |
| whether revokes prior or earlier Powers of Attorney | 751.135 | | | | 2-5 | |
| Statutory Powers of Attorney | | | | | | |
| Statutory Power of Attorney; Statutory Power of Attorney requirements | 752.051 | 4400-4409 | 5-1501(n); 5-1501B | | 3-1; 3-3 | |
| Statutory Power of Attorney form | NONE | 4401 | 5-1513 | NONE | | NONE |
| Statutory Durable Power of Attorney form | 752.051 | 4401 | 5-1513 | NONE | | NONE |
| prescribed form not exclusive | 751.003 | | 5-1501(o) | | | |
| minor variations are tolerable | 752.001; 752.002; 752.004 | | | | | |
| definition of non-statutory Power of Attorney | | | | | | |
| Subject Matter | | | | | | |
| powers irrelevant to whether property acquired later, location of property or where Power of Attorney executed | 751.031; 752.115 | 4464 | | 709.2201 | | 5601.4(f) |
| Reliance in Good Faith Protections | | | | | | |
| protection where unaware of revocation | 751.054; 751.134 | 4151 | | | | 5605 |
| death of principal where third party acts in good faith | | 4304 | | | | |
| Affidavit/declaration of agent confirming unaware of termination by revocation, death, incapacity or occurrence of event is conclusive proof | 751.055 | 4305 | 5-1501B; 5-1504 | 709.2119 | 2-8;
2-10.3;
2-10.5 | 5606 |
| certification of circumstances | 751.203 | | | | 2-10.3;
2-10.5 | |
| third party may assume agent authorized; effect of agent acting is to include warranties | | 4301 | 5-1505 | 709.2119 | | 5608(d) |
| third party may request agent provide identification, specimen signatures of principal and agent & other information | 751.204; 751.205 | 4302 | | 709.2119 | | 5608(e);
5608(f);
5608(g) |
| third party acting in good faith not liable to principal if Power of Attorney appears valid | 751.209 | 4303 | 5-1511 | 709.2119(3) | 2-8 | |
| knowledge of employees | | | | 709.2102 | | |
| third person to treat agent as if they were the principal | | 4300 | | | | |
| third party refusal to deal with agent where Affidavit provided, exposure to legal costs | 751.201; 751.212 | 4306; 4406 | 5-1504 | 709.2120 | | 5608.1(c) |
| grounds to refuse to deal with agent | 751.206; 751.207; 751.208; 751.210 | | 5-1504 | 709.2120 | | 5608.1(b) |
| Termination as Against Principal | | | | | | |
| termination | 751.131 | 4152 | 5-1511 | 709.2109 | 2-4(a); 2-5 | |
| fulfilment of purpose | | 4152 | 5-1511 | 709.2109 | | |
| Termination as Against Agent | | | | | | |
| incapacity of agent | | 4152 | | | | |
| revocation/termination of agent's authority | 751.132 | 4153 | 5-1511 | 709.2109(2); 709.2109(4) | | |
| incapacity terminates non-durable | | 4155 | | | | |
| incapacity does not terminate durable | | | 5-1501A | | | |
| absence of serving agent terminates | | | 5-1511 | | | |
| Divorce | | | | | | |
| divorce | | 4154 | 5-1504(7)(d); 5-1511 | | 2-6 | 5605(c) |
| Conflicts With Other Laws | | | | | | |
| conflicts with other laws | 751.007 | | | | | |
| Duties | | | | | | |
| duties generally | | | | | 2-4(a) | |
| designation of agent as fiduciary/imposition of fiduciary duty | 751.101 | | 5-1505 | | | |
| duty to act in good faith | | | | 709.2114 | 2-7 | |
| duty to act in accordance with principal's expectations | | | | 709.2114 | 2-7 | |
| duty to act solely in interests of principal | | 4232 | 5-1505 | 709.2114 | 2-7 | |
| duty to act loyally for the principal's benefit | | | 5-1505 | 709.2114 | | 5601.3(b) |
| duty to avoid conflicts | | 4232 | 5-1505 | | | 5601.3(b) |
| keep property separate | | 4233 | 5-1505 | | | 5601.3(b) |
| duty to communicate and follow instruction | 751.102; 751.101 | 4234 | 5-1505 | | | |
| duty to only act within scope of authority | | | | | | 5601.3(b) |
| duty to cooperate with health care decision maker | | | | 709.2114 | | 5601.3(b) |
| duty to preserve estate plan | 751.122 | | | 709.2114 | 2-9 | 5601.3(b) |
| duty to report breaches by agent or review conduct of agents | 751.121 | 4202 | | 709.2111 | 2-10.3 | |
| obligation upon third parties to provide information where issue as to capacity | | 4235 | | | | |
| consultation of third parties re capacity | | 4235 | | | | |
| keeping records | 751.103; 751.104 | 4236 | 5-1505 | 709.2114 | | 5601.3(b) |
| provide an account | 751.104; 751.105 | | | | | |
| provide information | 751.104 | | | | | |
| access to records | 751.104 | 4236 | 5-1505; 5-1508 | 709.2114 | 2-7 | 5601.3(d);
5604(d) |
| delivering up records upon termination | 751.052 ;751.104 | 4238 | 5-1508 | | | |
| safety deposit boxes | | | | 709.2114 | | |
| order to file an account | | | | | | 5610 |
| Third Party Required to Deal With Agent | | | | | | |
| dealings with third parties generally | | | | | 2-4(a) | |
| third person to treat agent as if they were the principal | | 4300 | | | | |
| third party refusal to deal with agent where Affidavit provided, exposure to legal costs | 751.201; 751.212 | 4306; 4406 | 5-1504 | 709.2120 | | 5608.1(c) |
| grounds to refuse to deal with agent | 751.206; 751.207; 751.208; 751.210 | | 5-1504 | 709.2120 | | 5608.1(b) |
| costs liability of third party | | | | 709.2120 | | |
| Trusts | | | | | | |
| delegation by a trustee | | | | 709.2103 | | |
| power to create | | | | | | 5601.4(a); 5602(a) |
| Copies | | | | | | |
| copies/certified copies | | 4307 | | 709.2106(5) | | 5602(d) |
| Filing | | | | | | |
| | | | | 709.2106(6) | | |
| Court | | | | | | |
| petitioners | 751.251 | | | 709.2116 | | |
| limiting petitioners | | 4503; 4540 | | | | |
| petition purposes | | 4541 | 5-1510 | 709.2116 | | |
| effect of filing of petition | | | | 709.2109(3) | | |
| bankruptcy | 751.057 | | | | | |
| requirement of proceedings to be in principal's interests | | 4543 | | | | |
| costs of proceedings | | 4545 | | 709.2116 | | |
| burden of proof to show no conflict | | | | 709.2116(4); 709.2116(5) | | |
| Notices | | | | | | |
| notice requirements | | | | 709.2121 | | |
| | | | | | | |