Where affairs are not inexorably linked to one state things become complicated
“inexorably linked” means certain criteria are satisfied
Some states assert wider jurisdiction than other states
Multi state affairs are complicated
REFERENCES
This Wiki focuses upon Powers of Attorney that are inexorably linked to a single state, being one of the Six (6) Greater States.
This is because matters become complicated where the relevant affairs of a principal are located in different states.
Whilst all of the Six (6) Greater States have legislation that recognizes Powers of Attorney created in another state ("reciprocal legislation"), the content of this legislation is often worded differently and accordingly, may operate in different ways in different states.
Complexities arise because for example, some of the Six (6) Greater States assert greater jurisdiction than others, in effect asserting jurisdiction to make orders governing matters outside the state in which the orders are made.
There is a fair argument that the use of interstate Powers of Attorney is not entirely satisfactory given the subtle differences between states, including common law differences.
Consider for example, in California, a non-durable Power of Attorney is not terminated by the principal losing capacity: §4155 and yet, in Texas (where no equivalent provision exists) there would be no obstacle for example, to creating a Power of Attorney that entitles an agent to exercise authority under the Power of Attorney only when the principal has capacity, but does not terminate upon the principal losing capacity and moreover, the Texas Court of Appeals handed down judgment in Cole & Strack v McWillie, Phillips and Burke on May 29, 2015 in which the Court concluded that the failure of a third party failed to dispute the capacity of the principal under a non-durable Power of Attorney within a certain period time was fatal to the third party’s entitlement to raise such a dispute, even in a case where there was some prospect of potentially establishing that the principal lacked capacity at the relevant time.
This example is helpful because it illustrates how fundamental the differences between states may be, in terms of how laws operate in different states.
A principal with affairs in different states might be well advised to create a Power of Attorney in each relevant state and limit the scope of the operation of each Power of Attorney so as to fit within the parameters of the laws of the state and in turn, ensure that where possible if not in all instances, the fundamental terms of the different Powers of Attorney are the same, so as to promote consistency in the management of their affairs.
The term inexorably linked in this Wiki refers to having a direct and exclusive relationship relationship with a single state.
For example, if a Power of Attorney was inexorably linked with Texas it would include:
All of the indicia cited above are required to be fulfilled so as to constitute being “inexorably linked”.
In the absence of satisfaction of all of these criteria it is entirely likely that the principal would need to consider the interrelationship between laws of different US States before signing a Power of Attorney.
Considering the interrelationship of laws of different US States is inherently complicated and invariably the subject of technical legal advice with respect to laws of multiple jurisdictions.
It is entirely unlikely that there is genuinely any substitute for legal advice from an attorney where the affairs of a principal are spread across more than one state, because the legal principles involved require an understanding of the laws relating to Powers of Attorney in all relevant states and understanding of other legal principles, dealing with the resolution of conflicts between laws of different states, jurisdiction, convenient forum for resolution of a dispute and many other sophisticated considerations outside any mere appreciation of Powers of Attorney in a given state.
That said, creation of a Power of Attorney in multiple states each limited in the scope of its operation to fit within the parameters of the laws of the relevant state in designs intended to promote consistency in the management of their affairs is one possible solution, perhaps the only real solution in many cases unless the principal is willing to invite the uncertainties that go with relying upon ‘foreign recognition’ provisions in legislation.
Some states like California have included in legislation provision to the following effect (bold added):
“a Power of Attorney may grant authority to make decisions concerning all or part of the principal’s real and personal property, whether owned by the principal at the time of the execution of the Power of Attorney or thereafter acquired or whether located in this state or elsewhere, without the need for a description of each item or parcel of property” (see §4123)
This sort of provision seeks to give a Court in California jurisdiction over property located in another US State.
Legal opinions may differ for example, about whether a provision of this kind would be given effect by a Court outside California or whether an order made by a Court of California in respect of property located in another US State in reliance upon §4052 would be recognized by a Court outside California.
States with clauses dealing with this subject matter include: New York (§5-1502A), Pennsylvania (5601.4(f); Florida (§709.2201); Texas with respect to durable Powers of Attorney (§751.031).
Illinois has no similar kind of provision.
Issues arising where a principal's affairs relevant to a Power of Attorney are not inexorably linked to a certain state are sophisticated.
They are unlikely to be resolved satisfactorily without legal advice from lawyers in multiple states.
The issues extend beyond the four corners of the Power of Attorney, that is a simple reading of the Power of Attorney.
A principal may want to quarantine the operation of different Powers of Attorney in certain states, for example to take advantage of their varying laws.
A principal with affairs in New York and California may prefer that under a Power of Attorney exclusively governing their affairs in California a person is appointed as a protector to take advantage of the option to appoint a protector in California that does not exist in New York and yet equally, the principal might look to rely on one Power of Attorney created in California and look to rely upon §5-1512 which provides (bold added):
“Notwithstanding the provisions of §1501B of this title, a power of attorney executed in another state or jurisdiction in compliance with the law of that state or jurisdiction or the law of this state is valid in this state, regardless of whether the principal is a domiciliary of this state. A power of attorney that complies with §1501B of this title and is executed in another state or jurisdiction by a domiciliary of this state is valid in this state. A power of attorney executed in this state by a domiciliary of another state or jurisdiction in compliance with the law of that state or jurisdiction or the law of this state is valid in this state.”
Whether or not that is satisfactory to create a Power of Attorney that is fit for purpose is something only a lawyer could sensibly discuss, being a lawyer familiar with the laws of both states, the principles applicable where laws of different states intersect and the comprehensive affairs of the principal. Consider for example, that the example above the concept in bold operates such that if the relevant principal resided in New York, the outcome would be quite different to if the principal resided in California.
Of immediate relevance in this context is whether there is need to physically attend upon each state in which a Power of Attorney is required to be made.
Whatever provisions may exist in legislation, there may be no substitute for the principal physically standing in the state of the laws under which the Power of Attorney is intended to be cast as a means to involve any issue arising in this respect, even if it be an issue in respect of the construction of the relevant clause in legislation, although of course, a governing law clause specifying the state from which the laws are said to apply to the Power of Attorney and ensuring that the Power of Attorney complies with the laws of the relevant state are equally part of the process.
Different Courts may apply the laws of different states to the Power of Attorney in different ways, resulting in inconsistent outcomes as between various states.
A Court in one state might declare the Power of Attorney wholly or partly unenforceable, whilst another upholds the Power of Attorney as valid to serve an unintended purpose and similar.
The potential for confusion in this way is a good reason for a principal physically standing in each relevant state to execute in each relevant state a Power of Attorney exclusively governing their affairs in that state, to the exclusion of all other states, so that for example, where a Power of Attorney might be declared to be terminated in one state, the implications in any other state are quarantined to that state.
Of course, some principals may prefer to execute a single Power of Attorney and look to take advantage of ‘foreign recognition’ provisions or ‘wider jurisdiction’ provisions in legislation, the question of what is best for any given principal being suitably the subject of legal advice which might best be given by multiple lawyers, being specialists in each relevant state.
§4053 states:-
"A durable power of attorney executed in another state or jurisdiction in compliance with the law of that state or jurisdiction or the law of this state is valid and enforceable in this state to the same extent as a durable power of attorney executed in this state, regardless of whether the principal is a domiciliary of this state."
§4052 sets out circumstances where it is said the Power of Attorney Law of California governs the Power of Attorney:-
"(1) The principal or attorney-in-fact was domiciled in this state when the principal executed the power of attorney.
(2) The authority conferred on the attorney-in-fact relates to property, acts, or transactions in this state.
(3) The acts or transactions of the attorney-in-fact occurred or were intended to occur in this state.
(4) The principal executed the power of attorney in this state.
(5) There is otherwise a reasonable relationship between this state and the subject matter of the power of attorney.
(b) If subdivision (a) does not apply to the power of attorney, this division governs the power of attorney and applies to the acts and transactions of the attorney-in-fact in this state where either of the following conditions is satisfied:
(1) The principal was domiciled in this state when the principal executed the power of attorney.
(2) The principal executed the power of attorney in this state."
§751.0023 recognizes:-
"(a) A durable power of attorney executed in this state is valid if the execution of the instrument complies with 751.0021(a).
(b) A durable power of attorney executed in a jurisdiction other than this state is valid in this state if, when executed, the execution of the durable power of attorney complied with:
(1) the law of the jurisdiction that determines the meaning and effect of the durable power of attorney as provided by §751.0024; or
(2) the requirements for a military power of attorney as provided by §1044b"
§751.0021 provides (underlining added):-
(a) An instrument is a durable power of attorney for purposes of this subtitle if the instrument:
(1) is a writing or other record that designates another person as agent and grants authority to that agent to act in the place of the principal, regardless of whether the term “power of attorney” is used;
(2) is signed by an adult principal or in the adult principal's conscious presence by another adult directed by the principal to sign the principal's name on the instrument;
(3) contains:
(A) the words:
(i) “This power of attorney is not affected by subsequent disability or incapacity of the principal”; or
(ii) “This power of attorney becomes effective on the disability or incapacity of the principal”; or
(B) words similar to those of Paragraph (A) that clearly indicate that the authority conferred on the agent shall be exercised notwithstanding the principal's subsequent disability or incapacity; and
(4) is acknowledged by the principal or another adult directed by the principal as authorized by Subdivision (2) before an officer authorized under the laws of this state or another state to:
(A) take acknowledgments to deeds of conveyance; and
(B) administer oaths.
(b) If the law of a jurisdiction other than this state determines the meaning and effect of a writing or other record that grants authority to an agent to act in the place of the principal, regardless of whether the term “power of attorney” is used, and that law provides that the authority conferred on the agent is exercisable notwithstanding the principal's subsequent disability or incapacity, the writing or other record is considered a durable power of attorney under this subtitle.
§751.0024 provides:
The meaning and effect of a durable power of attorney is determined by the law of the jurisdiction indicated in the durable power of attorney and, in the absence of an indication of jurisdiction, by:
(1) the law of the jurisdiction of the principal's domicile, if the principal's domicile is indicated in the power of attorney; or
(2) the law of the jurisdiction in which the durable power of attorney was executed, if the principal's domicile is not indicated in the power of attorney.
§5-1512 provides:
“Notwithstanding the provisions of §5-1501B of this title, a power of attorney executed in another state or jurisdiction in compliance with the law of that state or jurisdiction or the law of this state is valid in this state, regardless of whether the principal is a domiciliary of this state. A power of attorney that complies with §5-1501B of this title and is executed in another state or jurisdiction by a domiciliary of this state is valid in this state. A power of attorney executed in this state by a domiciliary of another state or jurisdiction in compliance with the law of that state or jurisdiction or the law of this state is valid in this state.”
§709.2102 contains this definition:
(2) “Another state” means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States.
§709.2106 states:
..
3) A power of attorney executed in another state which does not comply with the execution requirements of this part is valid in this state if, when the power of attorney was executed, the power of attorney and its execution complied with the law of the state of execution. A third person who is requested to accept a power of attorney that is valid in this state solely because of this subsection may in good faith request, and rely upon, without further investigation, an opinion of counsel as to any matter of law concerning the power of attorney, including the due execution and validity of the power of attorney. An opinion of counsel requested under this subsection must be provided at the principal's expense. A third person may reject a power of attorney that is valid in this state solely because of this subsection if the agent does not provide the requested opinion of counsel, and in such case, a third person has no liability for rejecting the power of attorney. This subsection does not affect any other rights of a third person who is requested to accept the power of attorney under this part, or any other provisions of applicable law.
(4) A military power of attorney is valid if it is executed in accordance with 10 U.S.C. s. 1044b , as amended..
§709.2107 states:
The meaning and effectiveness of a power of attorney is governed by this part if the power of attorney:
(1) Is used in this state; or
(2) States that it is to be governed by the laws of this state.
§709.2201 states:
Authority granted in a power of attorney is exercisable with respect to property that the principal has when the power of attorney is executed and to property that the principal 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.
§ 2-4. Applicability. (a) The principal may specify in the agency the event or time when the agency will begin and terminate, the mode of revocation or amendment and the rights, powers, duties, limitations, immunities and other terms applicable to the agent and to all persons dealing with the agent, and the provisions of the agency will control notwithstanding this Act, except that every health care agency must comply with Section 4-5 of this Act.
(b) From and after the effective date of this Act: (1) this Act governs every agency, whenever and wherever executed, and all acts of the agent to the extent the provisions of this Act are not inconsistent with the agency; and (2) this Act applies to all agencies exercised in Illinois and to all other agencies if the principal is a resident of Illinois at the time the agency is signed or at the time of exercise or if the agency indicates that Illinois law is to appl
§10.6 states:
(a) A power of attorney executed in another state or country is valid and enforceable in this State if its creation complied when executed with:
(1) the law of the state or country in which the power of attorney was executed;
(2) the law of this State;
(3) the law of the state or country where the principal is domiciled, has a place of abode or business, or is a national; or
(4) the law of the state or country where the agent is domiciled or has a place of business.
(b) A power of attorney executed in this State before the effective date of this amendatory Act of the 96th General Assembly is valid and enforceable in this State if its creation complied with the law of this State as it existed at the time of execution.
§5611 states:
A power of attorney executed in or under the laws of another state or jurisdiction shall be valid in this Commonwealth if, when the power of attorney was executed, the execution complied with:
(1) the law of the jurisdiction indicated in the power of attorney and, in the absence of an indication of jurisdiction, the law of the jurisdiction in which the power of attorney was executed; or
(2) the requirements for a military power of attorney under 10 U.S.C. § 1044(b) (relating to legal assistance).
§5613 states:
The meaning and effect of a power of attorney is determined by the law of the jurisdiction indicated in the power of attorney and, in the absence of an indication of jurisdiction, by the law of the jurisdiction in which the power of attorney is executed.
§5614 states:
1) A court having jurisdiction may decline to exercise jurisdiction if at any time it determines that a court of another county or state is a more appropriate forum.
(2) If a court of this Commonwealth declines to exercise jurisdiction, it shall either dismiss the proceeding or stay the proceeding upon condition that a proceeding be promptly commenced in another county or state. A court may impose any other condition that it deems appropriate.