This page is broken into the following sections:
An Advance Care Directive is a record of consent or more pertinently, a refusal of consent to receiving certain medical treatment.
For example, a person might record that if they are on life support with no prospects for recovery, they do not consent to receiving sustenance or medical treatment and consent to receiving higher quantities of pain medication, including acceptance of all risks and similar.
An Advance Care Directive is not a delegated decision making instrument, because it does not appoint anyone to make decisions, or perform tasks, on behalf of the author of the Advance Care Directive.
See §4701
See Title 2. Health, Subtitle H. Public Health Provisions, Chapter 166 Advance Directives
See Chapter 765
See 755 ILCS 35
See Chapter 54
“Agency” is a legal concept with various legal consequences.
Any agency requires a principal and an agent.
Hallmarks of an agency relationship include the agent assuming a fiduciary duty owed to the principal.
The term “agency agreement” typically refers to a contract under which a principal appoints an agent.
There is often need to distinguish between:-
The following definition of ‘person’ from the legislation of New York (§5-1501) is a useful starting point when identifying types of bodies corporate:-
“..corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, government, governmental subdivision, government agency, government entity, government instrumentality, public corporation, or any other legal or commercial entity”.
This list is complimented by recognizing the many sub-species of these types of legal entities, including:-
The approach taken in Florida is exemplary with respect to defining the kinds of legal entities in respect of which Powers of Attorney legislation applies.
In Florida:-
The term “codified” refers to the reduction to legislation of legal principles established at common law.
The term “commercial” in this Wiki refers to property, financial or legal affairs, as distinguished from welfare, lifestyle or medical matters.
Until relatively recently, it was generally accepted that a Power of Attorney could only be used for commercial purposes.
The distinction between commercial and non-commercial affairs is important because whenever a Power of Attorney is proposed for use, the purpose of the Power of Attorney must be considered.
The correct type of Power of Attorney must be used (i.e. commercial or non-commercial).
The term “common agency agreement” is often used in this Wiki to refer to an agency agreement, when distinguishing such an agreement from a Power of Attorney.
The term “common” in this context recognizes that a Power of Attorney is a form of agency agreement, hence using the term “common” makes clear that the agreement in question is not a Power of Attorney.
The term “common law” refers to the law as observed by Courts over the years.
Often, this term is used to identify legal principles that are not captured in legislation, being principles identified in judgments handed down by relevant Courts.
When common law is re-stated in legislation this is commonly referred to as codification.
At common law, legal principles deal with issues like whether a decision of a higher Court must be followed by a lower Court, what constitutes the binding component of any judgment.
Common law is traditionally modified by legislation, although the two sources of law work together.
Identifying the precise content of the common law is a sophisticated task and relevant reported cases can be hard to find.
There is often debate about the meaning and effect of judgments and similar, although similar debate also often takes place with respect to the meaning and effect of legislation.
Non-durable Powers of Attorney in Texas continue to be governed solely by common law.
This is because the Texas Legislature has only passed legislation dealing with durable Powers of Attorney.
Many common law principles, such as those dealing with fiduciary duty, agency, undue influence and unconscionable conduct and conflicts of interest may be relevant to Powers of Attorney.
It follows that understanding the operation of Powers of Attorney often requires a thorough appreciation of relevant legislation and common law principles.
The term “conflict of interest” frequently arises in the context of Powers of Attorney because Powers of Attorney impose a fiduciary duty and one of the core elements of a fiduciary duty is a duty to avoid conflict of interest.
The term “conflict of interest” in the context of Powers of Attorney typically refers to circumstances where the interests of an agent are at odds with the interests of the principal.
In California, the term “conservator” means “a court-appointed conservator having authority to make a health care decision for a patient” (§4613)
The term 'constituting documents' is used in this Wiki to refer to documents that govern bodies corporate, in the sense of being the ‘incorporating instrument’ by which the body corporate was created and which governs its affairs.
For example:-
These kinds of documents may be relevant in the context of Powers of Attorney because, for example:-
The term “contract” refers to an agreement entered between two or more parties that is intended to be legally binding.
A contract is distinguishable from a deed, because features of a contract include the need for consideration to extend from all parties to the contract, whereas a deed involves no such expectation.
The term “creature of statute” is used to refer to a legal instrument that is created in reliance upon legislation that recognizes the right to create the instrument.
The term “delegated decision making instrument” in this Wiki:-
The following are all examples of delegated decision making instruments:
Some legal instruments are something akin to a delegated decision making instrument but nonetheless, fall short of satisfying the intended meaning of this term in this Wiki.
For example, in Texas, a Declaration of Guardianship is less than a delegated decision making instrument because it is not an appointment of right, but rather, an expression of preference as to whom the declarant would prefer be appointed as their guardian, being a preference the declarant can reasonably hope will to be given effect by a Court, if called upon to appoint a guardian.
The term “durability” is a derivative of the the term “durable” and is typically used in sentences like “depending upon the durability of the Power of Attorney..” which is referring to whether the Power of Attorney is durable or non-durable.
The term “eligible” refers to being entitled to be appointed, in particular:-
An estate plan is a strategy designed to preserve and promote the wealth of a person and manage risks associated with incapacity or death.
An estate plan typically involves the preparation or consideration of various of documents, including:
A Power of Attorney plays a key role in an estate plan, identifying the manager or managers whom a person prefers to assume responsibility for their commercial interests, including property, financial and legal matters, in the event that the person loses capacity.
As such, a Power of Attorney is one of a small number of documents forming part of an estate plan that do not deal with matters arising upon death, but rather, matters that would arise upon loss of capacity.
Notably, a Power of Attorney is revoked upon the death of the principal, as recognized for example in §751.054. Whilst §751.054 strictly only applies to durable Powers of Attorney, it seems that the notion that death of the principal operates to revoke the Power of Attorney is well accepted.
The use and importance of Powers of Attorney in estate planning is increasing, given that society is ageing and has ever increasing access to medical services.
In all likelihood, at least a percentage of people will experience some degree of incapacity associated with the last years of their life.
It would be advantageous for everyone to ensure a plan is in place to deal with any future loss of their capacity to manage their own affairs, if for no other reason than to ensure that in the unlikely event they loss capacity, family members are not required to go to Court and they do not suffer financial loss or detriment because no one could attend to their affairs.
Various, different professionals may be involved to develop and execute a strong estate plan, including lawyers, accountants, financial planners, medical practitioners and insurance brokers, superannuation advisers etc.
§2-9 recognizes an agent's obligation to preserve the estate plan of their principal.
The mandatory notice in §5601 states (underlining added):-
“The law permits you, if you choose, to grant broad authority to an agent under power of attorney, including the ability to give away all of your property while you are alive or to substantially change how your property is distributed at your death. Before signing this document, you should seek the advice of an attorney at law to make sure you understand it.”
The term “fiduciary” is typically used in two senses:-
The concept of a fiduciary is a legal concept, used to identify a particular class of relationships.
In Texas for example, the term “fiduciary” is defined in §240.002(8) as “a personal representative, a trustee, an attorney in fact or agent acting under a power of attorney, or any other person authorized to act as a fiduciary with respect to the property of another person”.
In a fiduciary relationship, one legal entity enjoys the benefit of the “fiduciary” treating them with particular care, in particular requiring the fiduciary to put their own interests after the interests of the legal entity whose interests they are protecting.
Examples of a fiduciary relationships include for example, lawyer and client, company director and company and partners in a partnership.
The group of relationships said to be fiduciary relationships is never closed and for example, a Court may find that anyone who assumes a position of responsibility for another person, involving decision-making for that person, is a fiduciary.
An agent under a Power of Attorney is a fiduciary, who must at all times put the interests of the principal before their own interests.
A fiduciary such as an agent under a Power of Attorney is said to owe certain duties to the principal, including for example a duties to avoid conflicts of interest, act honestly, keep their property separate from the property of the principal and similar.
Below are some useful references relating to the Six (6) Greater States.
§4128
Notice to Person Accepting the Appointment as Attorney-in-Fact
By acting or agreeing to act as the agent (attorney-in-fact) under this power of attorney you assume the fiduciary and other legal responsibilities of an agent..
4202 duty not to conceal breach of fiduciary duties committed by another agent, which tacitly affirms the imposition of a fiduciary duty upon an agent.
4230 in context of assumption of positive duty to act
4266: “The exercise of authority by an attorney-in-fact is subject to the attorney-in-fact’s fiduciary duties.”
In California, a fiduciary is defined to include an agent appointed under a Power of Attorney (§39)
California courts, citing §2322(c), have found "any agent is also a fiduciary, whose obligation of diligent and faithful service is the same as that of a trustee." Duffy v. Cavalier, 215 Cal. App. 3d 1517, 1534 (1989).
California's definition of "agency" is found in §2295 of the Civil Code. Notably missing from this definition is any characterization of the relationship as "fiduciary":
Section 2322(c) of the Civil Code, however, provides that the authority to act as an agent, however broadly expressed, does not authorize the agent to "a duty to which a trustee is subject under Section 16002, 16004, 16005, or 16009 of the Probate Code. These sections of the Probate Code define a trustee's duty of loyalty (§ 16002), to avoid conflicts of interest (§ 16004), not to undertake an adverse trust (§ 16005), and to keep trust property separate and identified (§ 16009). Surely, this is a most determinedly roundabout way of describing an agent's duties. Nonetheless, California courts, citing Section 2322(c), have found "Any agent is also a fiduciary, whose obligation of diligent and faithful service is the same as that of a trustee." Duffy v. Cavalier, 215 Cal. App. 3d 1517, 1534 (1989).
751.101
A person who accepts appointment as an agent under a durable power of attorney as provided by §751.122 is a fiduciary as to the principal only when acting as an agent under the power of attorney and has a duty to inform and to account for actions taken under the power of attorney.
§751.121 duty not to conceal breach of fiduciary duties committed by another agent, which tacitly affirms the imposition of a fiduciary duty upon an agent.
In Texas, in respect of a durable Power of Attorney legislation imposes certain duties and operates to qualify how the fiduciary duty of an agent works, for example, §751.101 states that “a person who accepts appointment as an agent under a durable power of attorney as provided by Section §751.022 is a fiduciary as to the principal only when acting as an agent under the power of attorney and has a duty to inform and to account for actions taken under the power of attorney”.
§5-1501
"Agent" means a person granted authority to act as attorney-in-fact for the principal under a power of attorney, and includes the original agent and any co-agent or successor agent… An agent acting under a power of attorney has a fiduciary relationship with the principal."
§709.2111 duty not to conceal breach of fiduciary duties committed by another agent, which tacitly affirms the imposition of a fiduciary duty upon an agent.
§709.2114 “An agent is a fiduciary”.
The legislation does not expressly state that a fiduciary duty is imposed on an agent.
However, legislation refers to the need for co-agents to report and not conceal a breach of fiduciary duties committed by another agent, which tacitly affirms the imposition of a fiduciary duty upon an agent.
Prior to deletion of §5601(e) the following was included in the legislation:
"(e) Fiduciary relationship.—An agent acting under a power of attorney has a fiduciary relationship with the principal. In the absence of a specific provision to the contrary in the power of attorney, the fiduciary relationship includes the duty to:
(1) Exercise the powers for the benefit of the principal
(2) Keep separate the assets of the principal from those of an agent.
(3) Exercise reasonable caution and prudence.
(4) Keep a full and accurate record of all actions, receipts and disbursements on behalf of the principal.
This can be compared with reference to deletion in §5601 today.
It is generally accepted that a Power of Attorney must be strictly construed and the instrument will be held to grant only those powers which are specified.
The rationale for this principle seems relatively obvious. Unless Powers of Attorney are construed this way, it will remain entirely unclear at all times, what in fact an agent is authorized to do.
Authority for this principle is found in the common law of many states. For example:
"The established rule is that a Power of Attorney must be strictly construed and the instrument will be held to grant only those powers which are specified." Bloom v. Weiser, 348 So.2d 651, 653 (Fla. 3d DCA 1977).
See also Dingle v. Prikhdina, 59 So.3d 326, 328 (Fla. 5th DCA 2011): "Generally, the rule is that a power of attorney must be strictly construed and the instrument will be held to grant only those powers which are specified." (citing Bloom, 348 So.2d at 653 ) ).
See this extract from Estate of Irons ex rel. Springer v. Arcadia Healthcare, L.C., 66 So. 3d 396 (2011):
“Powers of attorney are strictly construed. They will be held to grant only those powers that are specified and will be closely examined in order to ascertain the intent of the principal.” Kotsch v. Kotsch, 608 So.2d 879, 880 (Fla. 2d DCA 1992) (holding power of attorney specifically granting authority to son to provide for father’s lifetime maintenance and care did not authorize son to transfer father’s assets into trust to protect them from father’s wife) (citing Falls at Naples, Ltd. v. Barnett Bank of Naples, N.A., 603 So.2d 100 (Fla. 2d DCA 1992) (Altenbernd, J., concurring)); see Carrington Place of St. Pete, LLC v. Estate of Milo ex rel. Brito, 19 So.3d 340, 341-42 (Fla. 2d DCA 2009) (holding power of attorney granting agent authority to manage principal’s property interests did not confer on the agent power to enter into arbitration agreements). A power of attorney “need not expressly refer to arbitration to confer the authority to agree to this method of dispute resolution.” Candansk, 25 So.3d at 582 (citing Jaylene, 995 So.2d at 569). For example, in Jaylene, we reversed an order denying a nursing home’s motion to compel arbitration. 995 So.2d 566. We concluded that the power of attorney, which granted the agent “full power and authority” to “manage and conduct all of [the principal’s] affairs and to exercise all of [her] legal rights and powers, including all rights and powers that [she] may acquire in the future,” encompassed the authority to consent to arbitration. Id. at 568; see also Estate of Smith v. Southland Suites of Ormond Beach, LLC, 28 So.3d 103, 104 (Fla. 5th DCA 2010) (holding power of attorney’s broad authority for attorney in fact to effectuate principal’s legal rights authorized consent to binding arbitration agreement where arbitration not mentioned specifically).
In Lamb v. Scott , 643 So.2d 972 (Ala. 1994), the Alabama Supreme Court held that powers of attorney are construed strictly, "restricting the powers to those expressly granted.."
The term “general law” is used in this Wiki to refer to common law and legislation.
The term “ineligible” means not entitled to be appointed.
A person might be ineligible for example, because they are:-
A person might also be rendered ineligible by virtue of legislative provisions.
For example, in Texas in respect of a durable Power of Attorney, the appointment of a spouse as an agent terminates upon their divorce from the principal, unless the Power of Attorney specifies otherwise (§751.132).
Explain conpt applies to [agents] and [principals] - can be appointed or appoint.
For agent, its explained elsewhere
For principal - if so appointed, give instructions together only or independently (depending on wording)
Explain several independent, joint is any two acting together
Recognizes if have say, five (5) agents:-
- and three act jointly and two severally, that's joint and several
- any three act jointly and that's joint
- and one (1), two (2) or more act independently, that's severally
etc.
The term .
In this Wiki, the terms “legal entity” or “legal entities” refer to:-
Because this Wiki is focused upon Powers of Attorney, there is particular need to distinguish between:-
This is important in particular because in Texas, the context in which these distinctions arise with respect to Powers of Attorney is slightly different to many US States:-
explain here how for successor agent may be person or commercial entity go through sub-agent protector as well because this links to can appoint a legal entity as a succ agent or sub-agent etc.
"“legally bind”, ‘legally bound’, “legally binding”, “binding”, “bound” and words of similar ilk refer to being legally enforceable.
In practical terms, asserting the existence of a legally binding arrangement is fundamental to holding someone to a promise, or being alleged to have some legal obligation, such that either party could expect a Court to hold the parties to the terms of a particular arrangement.
It is often viewed as a kind of ‘threshold’ because invariably, persons who enter dealings may do so without intention to be legally bound, perhaps in contemplation of potentially entering a legally binding arrangement in the future, or perhaps with no such intention.
(a) All acts of the agent within the scope of the agency during any period of disability, incapacity or incompetency of the principal have the same effect and inure to the benefit of and bind the principal and his or her successors in interest as if the principal were competent and not a person with a disability.
(g) Legal effect of agent's actions.--An act performed by an agent pursuant to a power of attorney has the same effect and inures to the benefit of and binds the principal and the principal's successors in interest as if the principal had performed the act.
Texas
An act performed by an agent under a durable power of attorney has the same effect and inures to the benefit of and binds the principal and the principal's successors in interest as if the principal had performed the act.
California
§4125 provides:
All acts done by an attorney-in-fact pursuant to a durable power of attorney during any period of incapacity of the principal have the same effect and inure to the benefit of and bind the principal and the principal's successors in interest as if the principal had capacity.
In the Context of Powers of Attorney
In the context of Powers of Attorney, it is commonly said that:
“the act of an agent is binding upon a principal” .
In Texas for example, this concept is codified with respect to durable Powers of Attorney (§751.051).
In practical terms, this means if an agent signs a contract on behalf of the principal, the agent's signature is ‘the signature of the principal’ for all purposes.
It should be recognized that:-
The potential of an agent to legally bind the principal is a good reason for a principal to exercise great care when choosing an agent.
Considerable protections exist for the benefit of third parties in many contexts (not merely legislation that for example, entitles a third party to assume a signature is genuine or that an agent has suitable authority) including where a Power of Attorney is relied upon by a third party for the purpose of entering an arrangement with the principal and in most US States where these sorts of legislative schemes operate (such as Texas, Florida and Pennyslvania for example), the scheme favors the interests of the third party, affording the third party confidence when doing business with the agent, unless perhaps for example, the third party is on notice of unusual circumstances or similar.
In circumstances where a third party, is afforded considerable favor in terms of protections and an agent has authority to legally bind the principal, there are obvious grounds for caution.
For example, a principal might:-
note legally binding on principal also auth of agent to legally bind principal ..
The term legal instrument typically refers to a written document created with the intention of creating legally binding relations.
that is, intended to have legally binding effects and consequences, created in accordance with all relevant laws)
Examples of legal instruments include leases, contracts for sale, shareholder agreements, trusts deeds, …
A Power of Attorney is a unique kind of legal instrument.
For example:
For example, it is not unknown for a principal to sign a Power of Attorney and then place it in the custody of their lawyer, with specific instructions about its release to any agent.
LLC refers to a limited liability company.
A limited liability company is a legal entity that has the limited liability of a company and at least has the potential to derive income which is not taxed in the hands of the company but rather, is taxed in the hands of its members, accepting that in some instances an LLC may elect to tax its income in the hands of the company.
An LLC is not a corporation.
LLP refers to a limited liability partnership.
A limited liability partnership is a partnership or limited partnership that has optionally registered as LLP.
Chapters 151-154 of the Business Organizations Code (Texas) may be of assistance in relation to limited liability partnerships in Texas.
The term “person” where it is linked to this definition refers to a human being.
This term distinguishes between a commercial entity (i.e. company, corporation, trust or association etc.) and an ordinary person.
This distinction is helpful because in some contexts, the term “person” may refer a natural person or a commercial entity.
signed or signed by anor
witnessesing etc
.
In the context of Powers of Attorney, “non-commercial” means unrelated to welfare, lifestyle or medical matters.
Typically, “non-commercial” affairs are matters without reference to property, financial and legal interests, assets and liabilities.
Until relatively recently, it was generally accepted that a Power of Attorney could only be used for commercial purposes.
As at today, there may well be arguments between lawyers as to whether instruments like a Medical Power of Attorney in Texas are ‘real’ Powers of Attorney, because the very notion of a Power of Attorney for non-commercial purposes (i.e. relating to welfare, lifestyle or medical matters) offends longstanding, keystone principles relevant to Powers of Attorney.
Insert
The term “non-commercial entity” is typically used in the context of Powers of Attorney to refer to persons.
It is used in this context to distinguish persons from all manner of other commercial entities that might be involved with use of a Power of Attorney, including for example corporations, partnerships, trusts and companies.
In theory, the term might also be used to distinguish for example, religious organizations from commercial entities like corporations, partnerships, trusts and companies, but this is not a distinction made with respect to Powers of Attorney, institutions like churches, government agencies, associations and similar all substantially falling into the class of legal entities referred to as commercial entities, so as maintain the division between persons and any other kinds of legal entities.
This distinction is important because for example, a durable Power of Attorney may only be created by a person and in many US States, legislation governing either durable or non-durable or both kinds of Power of Attorney, only applies where the principal is a person.
California
Effective July 1, 2000, laws were passed consolidating previous laws to provide for the creation of an Advance Health Care Directive including a Health Care Power of Attorney (§4701):-
Legislation governing durable or non-durable Power of Attorney for commercial purposes does not apply to Health Care Powers of Attorney (§4050(a)(1))
Texas
Prior to 1991 when Medical Power of Attorney were introduced, Powers of Attorney could only be used for commercial purposes.
Since 1991, it has been possible to create a Power of Attorney for commercial or medical purposes, albeit using different documents and under separate statutory regimes.
New York
There is no instrument titled “Power of Attorney” for non-commercial purposes, the closest instrument of such a kind being a Health Care Proxy.
Florida
There is no instrument titled “Power of Attorney” for non-commercial purposes, the closest instrument of such a kind being a Designation of Health Care Surrogate (§765.203).
That said, §709.2109 recognizes that a durable Power of Attorney may be used to authorize an agent to make health care decisions.
Illinois
The legislation governing Powers of Attorney for commercial purposes also operates with respect to certain Powers of Attorney for non-commercial purposes, including welfare, lifestyle and medical matters.
See §2-4 stating “every agency, including.. health care agencies, shall have the benefit of and be governed by Article II, by Sections 4-1 through 4-9 and Section 4-11 of Article IV, and by all other general provisions of this Act..”) and §4-10(a) stating that “..the statutory health care power may be included in or combined with any other form of power of attorney governing property or other matters”.
Pennsylvania
A person may create a Health Care Power of Attorney. (§5422).
Other forms of powers include for example, power to appoint a trustee (in respect of a trust) a power to appoint income (for example, income of a discretionary trust) or power to appoint assets (for example, permitting distribution of the corpus of a trust or in a will stating “I leave my stamp collection to be distributed as my son John sees fit”).
All these examples are of powers of appointment and a Power of Attorney is by comparison, a more complicated device.
A Power of Attorney records the exercise of a power (so as to appoint an agent) and the terms upon which other powers operate, power for someone to appoint successor agents in California, Texas, Illinois and Pennsylvania, power to perform any task, power to bind the principal and similar.
See this link: https://www.upcounsel.com/legal-def-power copied below
POWER
This is either inherent or derivative.
Inherent Power
The former is the right, ability, or faculty of doing something, without receiving that right, ability, or faculty from another. The people have the power to establish a form of government, or to change one already established. A father has the legal power to chastise his son; a master, his apprentice.
Derivative Power
Derivative power, which is usually known, by the technical name of power, is an authority by which one person enables another to do an act for him. Powers of this kind were well known to the common law, and were divided into two sorts: naked powers or bare authorities, and powers coupled with an interest. There is a material difference between them. In the case of the former, if it be exceeded in the act done, it is entirely void; in the latter it is good for so much as is within the power, and void for the rest only.
Powers of Revocation and Appointment
Powers derived from, the doctrine of uses may be defined to be an authority, enabling a person, through the medium of the statute of uses, to dispose of an interest, vested either in himself or another person. The N Y Revised Statutes define a power to be an authority to do some act in relation to lands, or the creation of estates therein, or of charges thereon, which the owner granting or reserving such power might himself lawfully perform. They are powers of revocation and appointment which are frequently inserted in conveyances which owe their effect to the statute of uses; when executed, the uses originally declared cease, and new uses immediately arise to the persons named in the appointment, to which uses the statute transfers the legal estate and possession. Powers being found to be much more convenient than conditions, were generally introduced into family settlements.
Although several of these powers are not usually called powers of revocation, such as powers of jointuring, leasing, and charging settled estates with the payment of money, yet all these are powers of revocation, for they operate as revocations, pro tanto, of the preceding estates. Powers of revocation and appointment may be reserved either to the original owners of the land or to strangers: hence the general division of powers into those which relate to the land, and those which are collateral to it.
Land-Related Powers
Powers relating to the land are those given to some person having an interest in the land over which they are to be exercised. These again are subdivided into powers appendant and in gross.
A power appendant is where a person has an estate in land, with a power of revocation and appointment, the execution of which falls within the compass of his estate; as, where a tenant for life has a power of making leases in possession.
A power in gross is where a person has an estate in the land, with a power of appointment, the execution of which falls out of the compass of his estate, but, notwithstanding, is annexed in privity to it, and takes effect in the appointee, out of an interest vested in the appointer; for instance, where a tenant for life has a power of creating an estate, to commence after the determination of his own, such as to settle a jointure on his wife, or to create a term of years to commence after his death, these are called powers in gross, because the estate of the person to whom they are given, will not be affected by the execution of them.
Collateral Powers
Powers collateral, are those which are given to mere strangers, who have no interest in the laud: powers of sale and exchange given to trustees in a marriage settlement are of this kind.
This classification of powers is admitted to be important only with reference to the ability of the donee to suspend, extinguish or merge the power. The general rule is that a power shall not be exercised in derogation of a prior grant by the appointer. But this whole division of powers has been condemned' as too artificial and arbitrary. Powell divides powers into general and particular powers. General powers are those to be exercised in favor of any person whom the appointer chooses. Particular powers are those which are to be exercised in favor of specific objects.
OExplain in particx with relevance to protector
- in respect of other *Powers of Attorney*:
- appointment of a [protector](https://wiki.powersofattorney.com/en/protector#protector-ca-tx-il-pa) seems to amount to exercise of a [power of appointment](https://wiki.powersofattorney.com/en/terms#meaning-of-power-if-appointment) or delegation of a [power of appointment](https://wiki.powersofattorney.com/en/terms#meaning-of-power-if-appointment)
- legal opinions may differ as to whether exercise of such a [power of appointment](https://wiki.powersofattorney.com/en/terms#meaning-of-power-if-appointment) or delegation of a [power of appointment](https://wiki.powersofattorney.com/en/terms#meaning-of-power-if-appointment) is permissible
[^14]: If this kind of [power of appointment](https://wiki.powersofattorney.com/en/terms#meaning-of-power-if-appointment) or delegation of a [power of appointment](https://wiki.powersofattorney.com/en/terms#meaning-of-power-if-appointment) is permissible, there is no obvious basis to conclude that a [protector](https://wiki.powersofattorney.com/en/protector#protector-ca-tx-il-pa) must be a [person](https://wiki.powersofattorney.com/en/terms#meaning-of-person-ie-natural-person) (i.e. not a [commercial entity](https://wiki.powersofattorney.com/en/terms#meaning-of-commercial-entity)).
To understand a *Power of Attorney*, it is helpful to first consider [powers of appointment](https://wiki.powersofattorney.com/en/terms#meaning-of-power-if-appointment).
A [power of appointment](https://wiki.powersofattorney.com/en/terms#meaning-of-power-if-appointment) may apply in respect of:-
- an officer of a [commercial entity](https://wiki.powersofattorney.com/en/terms#meaning-of-commercial-entity) (i.e. a trustee or director of a corporation)
- income (i.e. a power to appoint income of a trust)
- INSERT
A *Power of Attorney* is unique when compared to these other examples of a [power of appointment](https://wiki.powersofattorney.com/en/terms#meaning-of-power-if-appointment)
Explain
“in its pure form … is a web of contractual relationships between subscribers who agree to insure one another, consummated through a common agent with power of attorney.”4 The exchange is the insurer and the subscribers are the insureds.5 The subscribers execute powers of attorney appointing the attorney-in-fact to act on their behalf. The attorney-in-fact executes the exchange’s insurance power.6
4 True v. Robles, 571 F.3d 412, 414 (5th Cir.2009).
5 Tran. v. Farmers, 104 Cal.App.4th 1202 (2012).
6 Id.
The term “re-eligible” refers to
The term “separate agreement ” in this Wiki refers to a agreement governing use of a Power of Attorney, or more than one Power of Attorney.
Invariably the terms of a Power of Attorney itself may be harder to vary using a separate agreement and for example, some states require amendments to be executed in the same manner as the Power of Attorney.
Typically, a “separate agreement ” will not take the form of a Power of Attorney although this is possible, for example a Power of Attorney annexing two other Powers of Attorney, defining matters referable to their use.
A separate agreement might be found in contract with some substantial other purpose or a stand alone contract, dealing only with use of certain Powers of Attorney.
The term “Six (6) Greater States” in this Wiki refers to
Terms like ‘third party’, ‘third parties’ or ‘third person’ refer to legal entities other than the principal or agent under a given Power of Attorney, in particular legal entities with whom an agent enters dealings as an agent.
The term is often used in expressions like “any third party dealing with an agent” or “a third party approached by an agent”.
The term is also useful in related contexts, such as when discussing third party rights, or third party enforcement scheme which respectively refer to rights of a third party to request and receive certain information and documents from an agent when deciding whether to accept a Power of Attorney and the scheme under which such a request is made in conjunction with for example, rights of an agent to approach a Court if a third party refuses to deal with the agent and similar.
The principle is codified in some US States, such as Florida, where ‘third person’ is defined to mean “any person other than the principal, or the agent in the agent's capacity as agent” (§709.2102(15)).
A Special Word About California
The following extract from the 1994 California Law Revision Commission Report which led to enactment of Division 4.5 of the Probate Code is informative, speaking of law as it was prior to the amendments and proposed changes:
“Section 4034 is a new provision. For the purposes of this statute, a third person is a person who acts on a request from, contracts with, relies on, or otherwise deals with the attorney-in-fact. The.. [new law] uses the equivalent term “third party.” See Sections 4401-4402..”
§4034 defines the term ‘third person’ in this context, being “any person other than the principal or attorney-in-fact”.
Notably the term “person” is used in 4034 unlike the term “natural person" used for example in 4026.
§5-1501(p) defines a third party as:
"a financial institution or person other than a principal or an agent".
“person” is defined as: (§1501)
“.. an individual, whether acting for himself or herself, or as a fiduciary or as an official of any legal, governmental or commercial entity (including, but not limited to, any such entity identified in this subdivision), corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, government, governmental subdivision, government agency, government entity, government instrumentality, public corporation, or any other legal or commercial entity.”
§709.2102 defines a third person as:
any person other than the principal, or the agent in the agent's capacity as agent.
§101 defines “person” to include “individuals, children, firms, associations, joint adventures, partnerships, estates, trusts, business trusts, syndicates, fiduciaries, corporations, and all other groups or combinations”.
In Texas, third parties are mentioned in §751.102. but the term is not defined in legislation.
In Illinois, whilst the term is not defined, third parties are mentioned twice in the overarching purpose provisions at the commencement of the legislation (§2-1):-
"The General Assembly recognizes that each individual has the right to appoint an agent to make property, financial, personal, and health care decisions for the individual but that this right cannot be fully effective unless the principal may empower the agent to act throughout the principal's lifetime, including during periods of disability, and have confidence that third parties will honor the agent's authority at all times.
The General Assembly finds that in the light of modern financial needs and advances in medical science, the statutory recognition of this right of delegation in Illinois needs to be restated, which will, among other things, expand the application and the permissible scope of the agent's authority, clarify the power of the individual to authorize an agent to make financial and care decisions for the individual and better protect health care personnel and other third parties who rely in good faith on the agent so that reliance will be assured.."
In Pennyslvania, the concept of “third party” has been removed from §5608.
Terms
There is often need to distinguish between:-
The following definition of ‘person’ from the legislation of New York (§5-1501) is a useful starting point when identifying types of bodies corporate:-
“..corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, government, governmental subdivision, government agency, government entity, government instrumentality, public corporation, or any other legal or commercial entity”.
This list is complimented by recognizing the many sub-species of these types of legal entities, including:-
The approach taken in Florida is exemplary with respect to defining the kinds of legal entities in respect of which Powers of Attorney legislation applies.
In Florida:-
The terms “legal entity” refers to:-
In many legislative contexts, the term “person” is defined to include one or more kinds of body corporate.
For example:-
In California:-
In Texas:-
In New York:-
In Florida:-
In Illinois:-
In Pennsylvania:-
The approach illustrated by most of the examples above, whereby term "person" is defined for the purpose of particular legislation to include certain kinds of bodies corporate, is not invariable.
Many pieces of legislation:-
Because this Wiki is focused upon Powers of Attorney, there is particular need to distinguish between:-
This is important in particular because in Texas, the context in which these distinctions arise with respect to Powers of Attorney is slightly different to many US States:-
explain here how for successor agent may be person or commercial entity go through sub-agent protector as well because this links to can appoint a legal entity as a succ agent or sub-agent etc.
LLC refers to a limited liability company.
A limited liability company is a legal entity that has the limited liability of a company and at least has the potential to derive income which is not taxed in the hands of the company but rather, is taxed in the hands of its members, accepting that in some instances an LLC may elect to tax its income in the hands of the company.
An LLC is not a corporation.
LLP refers to a limited liability partnership.
A limited liability partnership is a partnership or limited partnership that has optionally registered as LLP.
Chapters 151-154 of the Business Organizations Code (Texas) may be of assistance in relation to limited liability partnerships in Texas.
The term “person” where it is linked to this definition refers to a human being.
This term distinguishes between a commercial entity (i.e. company, corporation, trust or association etc.) and an ordinary person.
This distinction is helpful because in some contexts, the term “person” may refer a natural person or a commercial entity.