There are many reasons records may come into existence
Any list of relevant records is substantial
Keeping adequate records is another means of managing risks
The ideas listed below are drawn substantially from the legislation of the various, Six (6) Greater States, touching upon concepts found in the legislation and similar.
To this list would be added documents that may have suitably been created when the Power of Attorney was created or thereafter, of the kind recognized elsewhere in this Wiki, if they are not expressly mentioned in this page.
In all of the Six (6) Greater States there is considerable potential for extra documents to form part of the records pertaining to a Power of Attorney.
Establishing a good record keeping system is integral to the smooth operation of a Power of Attorney.
This list may be a useful starting point for anyone for example, wanting to look at a suitable scheme of directions to manage record keeping practices.
Below is a list of records that arise in the context of Powers of Attorney in some of the Six (6) Greater States, which together make a useful list of possible records relating to a Power of Attorney:-
- signed copies of the Power of Attorney (including acknowledgements, certified copies where relevant etc.)
- amending instruments
- notices of resignation, termination, renouncement or removals (including marriage dissolution, annulment records, remarriage and similar where relevant)
- agent's accounting records which typically include copies of all receipts and other transaction records, an explanation of each transaction etc.
- records in respect of the exercise of any “hot” powers
- records of the principal's property (kept separate from the agents' property)
- records relating to remuneration and expense entitlements of an agent
- clear records of any date of appointment and date of cessation of appointment of every agent
- agent's certificates or Affidavits (as required by third parties or otherwise)
- Counsel's opinions
- records evidencing any appointment of sub-agents (not in Florida)
- succession records (such as any ‘written agreement' to serve entered by a successor agent as referred to §4207 in California)
- designation of a successor agent by a protector in relevant states
- general communications and notifications
- any related agreements, such as any agreement to act not evidenced in the terms of the Power of Attorney (as contemplated in §4230 in California)
- notices of breach of fiduciary duty
- records evidencing audit type processes
- Court documents including initiating process, Affidavits, court orders and similar
- medical or other records relevant to the capacity of the principal
- signature specimens, residential address details or other ‘information’ supplied to any third party
- declarations as to the occurrence of contingencies by third parties
- records of consultations with third parties relevant to the Power of Attorney
Absence of relevant records can frustrate and impede the good operation of a Power of Attorney.
Without records, it may be considerably more difficult if not impossible to establish important matters that might for example, identify who might be liable to the principal if something goes wrong.
Legislation typically imposes record keeping requirements upon an agent but it is in the principal's interests to ensure the best possible record keeping systems are in place and complied with.
It might be practical for example, for a principal to direct that their agents establish a ‘shared dropbox file' with sub-folders of the kind listed above, which can be accessed by all agents, the principal and anyone else the principal chooses, in conjunction with inclusion of a direction that all such records be deposited in the dropbox, in addition for example, to be delivered to the principal if also preferred. A single access point for all of these records is as invaluable as it may be essential.
It is fair to say that for example, the establishment of a ‘shared dropbox’ in conjunction with suitable directions to an agent to maintain records in the dropbox and adequate access arrangements to say, a ‘third agent’ being an accountant with authority to access and perhaps subject to certain directions to regularly vet the content of the dropbox may provide a significant disincentive for any agent who is contemplating not keeping records well and truly up to date, the keeping of records being a fundamental component of risk management.
Good records and suitable access to records is an important component of risk management.
Below is a loose collection of references to items from the list under the heading ‘record keeping arrangements’ above.
It does not include reference to all possibilities but read together, may be a strong starting point for anyone seeking to design a record keeping system in conjunction with a Power of Attorney.
A Power of Attorney means a written instrument: §4022
Provisions dealing with warning notices, execution, witnessing, qualifications of agents and protection of third parties cannot be varied:§4101
§4129 provides for a person or persons making a declaration as to the occurrence of a contingency.
§4150 provides for amending instruments being executed in the same manner as a Power of Attorney.
§4151 provides for revocations to be recorded in writing or otherwise in accordance with the terms of a Power of Attorney.
§4152 recognizes that a principal may remove an agent.
§4205 recognizes an agent may appoint a sub-agent.
§4203 recognizes a protector may designate successor agents
§4205 recognizes an agent may be entitlement to remuneration or expenses.
§4207 recognizes an agent's entitlement to resign by giving notice if the principal is competent or to an appointed conservator.
§4230 recognizes the possible existence of agreement to act evidenced in writing.
§4235 recognizes an agent may source information from third parties.
§4264 identifies certain hot powers.
§4302 recognizes signature specimens may be requested by a third party, together with residential address details for the principal and ‘information’.
§4305 recognizes an Affidavit from an agent verifying the non-termination of authority is conclusive proof (written grounds for refusal arise only where a statutory Power of Attorney is used).
§4503 recognizes a certificate from a lawyer dealing with exclusion of certain petitioners.
§4202 recognizes emergency circumstances may justify an agent acting outside the scope of their authority
§751.0022 entitles a third party to presume the signature of the principal is genuine.
§751.023 recognizes an agent may appoint a sub-agent.
§751.024 recognizes an agent's entitlement to remuneration or expenses.
§751.031, §751.032 and §751.033 identify certain hot powers.
§751.055 recognizes that an Affidavit from an agent verifying the non-termination of authority is conclusive proof of non-revocation, non-suspension or non-termination of the power at that time.
§751.101 and §751.102 recognizes an agent has a duty to inform and account.
§751.023 recognizes a protector may designate successor agents.
§751.103 recognizes the need for an agent to maintain records of actions and decisions.
§751.104 recognizes an agent may provide an account (including asset list with valuations, cash balances, locations of deposits, liabilities and other information.
§751.105 provides for a Court to make orders compelling production of accounts.
§751.121 provides for an agent to report breaches of fiduciary duty.
§751.201, §751.203, §751.204 and §751.205 provides for agent's certification, counsel's opinion and translations.
§751.207 provides for a written statement of reasons for refusal by a third party.
§751.131 and §751.132 provide for revocation.
§751.131 provide for marriage to be dissolved by court decree of divorce or annulment or is declared void.
§5-1501 contains a definition of compensation and §5-1509 deals with compensation and expenses.
5-1501B recognizes a declaration may be given by a person as to the occurrence of a contingency or event.
§5-1504 recognizes that a third party may provide written reasons for rejection.
§5-1504 recognizes divorce or annulment.
§5-1504 recognizes notice of revocation or termination and §5-1511 speaks of revocation by the principal.
§5-1504 recognizes divorce or annulment.
§5-1505 recognizes records of receipts, disbursements and transactions are to be kept by an agent.
§5-1505 recognizes an agent may give written notice of resignation if the principal has capacity and §5-1511 speaks of resignation by an agent.
§5-1508 recognizes emergency circumstances may justify an agent acting outside the scope of their authority.
§5-1508 recognizes an agent may require an agent to produce receipts, disbursement and transaction records.
§5-1509 recognizes an monitor may require an agent to produce receipts, disbursement and transaction records.
§709.2102 recognizes notice being given of a fact.
§709.2110 recognizes a revocation.
§709.2111 recognizes a protector may designate successor agents.
§709.2111 recognizes a delegation of banking transactions under §709.2208 may be issued.
§709.2111 provides for an agent to report breaches of fiduciary duty.
§709.2114 recognizes records of receipts, disbursements and transactions are to be kept by an agent.
§709.2114 recognizes record an inventory of any safety deposit box on each attendance must be kept by an agent.
§709.2119 recognizes that an Affidavit from an agent verifying the non-termination of authority is conclusive proof of non-revocation, non-suspension or non-termination of the power at that time.
§709.2119 recognizes that a third party may provide written reasons for rejection.
§709.2121 recognizes the existence of notices dealing with revocation, termination, occurrence of events, incapacity, death, suspension and other matters.
§709.2201 and §709.2202 speak of hot powers.
§2-5 recognizes an agent may “communicate” amendment or revocation of a Power of Attorney.
§2-6 recognizes a judgement as to dissolution or separation from a spouse who is an agent.
§2-7 recognizes notification of amendment or termination of a Power of Attorney.
§2-7 recognizes need for an agent to keep records of receipts, disbursements and significant actions.
§2-8 recognizes a certificate or Affidavit may be created by an agent.
§2-10.3 recognizes a protector may designate successor agents.
§2-10.3 and §2-10.5 provides for an agent to report breaches of fiduciary duty.
§2-10.3 recognizes an agent may provide for a certificate or Affidavit.
§2-10.5 recognizes emergency circumstances may justify an agent acting outside the scope of their authority.
§5601.3 recognizes need for an agent to keep records of receipts, disbursements and significant actions.
§5601.4 and §5603 speak of hot powers.
§5602 recognizes a protector may have power to appoint successor agents.
§5605 speaks of revocation.
§5608 speaks of requests for information from third parties, translations, counsel's opinions, Affidavits or certifications from an agent and additional requests for information.
§5610 speaks of filing of accounts with a Court.
§5609 speaks of compensation and expenses.