# Tasks > Tasks that an agent may perform under a Power of Attorney Source: https://wiki.powersofattorney.com/whatcanagentdo · Updated 2 February 2023 - [**Use of various kinds of *Power of Attorney***](https://wiki.powersofattorney.com/whatcanagentdo#use-of-various-kinds-of-powers-of-attorney) - [An agent can perform **commercial tasks**](https://wiki.powersofattorney.com/whatcanagentdo#an-agent-can-perform-commercial-tasks) - [There are lots of **examples** of commercial tasks](https://wiki.powersofattorney.com/whatcanagentdo#there-are-lots-of-examples-of-commercial-tasks) - [The agent’s **authority** is **specified in** the ***Power of Attorney***](https://wiki.powersofattorney.com/whatcanagentdo#the-agents-authority-is-specified-in-the-power-of-attorney) - [**'Statutory’ tasks** are contained in the legislation of many states](https://wiki.powersofattorney.com/whatcanagentdo#statutory-tasks-are-contained-in-the-legislation-of-many-states) - [**Example** of statutory task](https://wiki.powersofattorney.com/whatcanagentdo#example-of-statutory-task) - [**Borrowing** wording from other states](https://wiki.powersofattorney.com/whatcanagentdo#borrowing-wording-from-legislation-of-other-states) - [**Incorporation** by mere reference](https://wiki.powersofattorney.com/whatcanagentdo#in-some-circumstances-incorporation-may-be-achieved-by-mere-reference) - [The statutory tasks are **expanded**](https://wiki.powersofattorney.com/whatcanagentdo#the-defined-statutory-tasks-are-expanded-in-certain-respects) - [The statutory tasks have **limited** application](https://wiki.powersofattorney.com/whatcanagentdo#the-statutory-tasks-have-limited-application-in-some-states) - [**Incorporation** of Statutory Tasks By Mere Reference Into a **Non-Durable** *Power of Attorney* in **Texas**](https://wiki.powersofattorney.com/whatcanagentdo#incorporation-of-statutory-tasks-by-mere-reference-into-a-non-durable-power-of-attorney-in-texas) - [There are **similarities** between statutory tasks **in different states**](https://wiki.powersofattorney.com/whatcanagentdo#the-statutory-tasks-have-similarities-in-many-of-the-six-6-greater-states) - [An agent may be granted **general authority**](https://wiki.powersofattorney.com/whatcanagentdo#an-agent-may-be-granted-general-authority) - [**Tasks** may be **allocated to be performed many different ways**](https://wiki.powersofattorney.com/whatcanagentdo#tasks-may-be-allocated-to-be-performed-many-different-ways) - [Some **tasks** are **unable to be performed** by an agent](https://wiki.powersofattorney.com/whatcanagentdo#some-tasks-are-unable-to-be-performed-by-an-agent) - [Performance of **special and hot tasks** is restricted](https://wiki.powersofattorney.com/whatcanagentdo#performance-of-special-and-hot-tasks-is-restricted) - [California](https://wiki.powersofattorney.com/whatcanagentdo#california) - [Texas](https://wiki.powersofattorney.com/whatcanagentdo#texas) - [New York](https://wiki.powersofattorney.com/whatcanagentdo#new-york) - [Florida](https://wiki.powersofattorney.com/whatcanagentdo#florida) - [Illinois](https://wiki.powersofattorney.com/whatcanagentdo#illinois) - [Pennsylvania](https://wiki.powersofattorney.com/whatcanagentdo#pennsylvania) - [In some states an agent has **‘emergency’ authority**](https://wiki.powersofattorney.com/whatcanagentdo#in-some-states-an-agent-has-emergency-authority) - [**Overlapping powers** are regulated by legislation in some of the Six (6) Greater States](https://wiki.powersofattorney.com/whatcanagentdo#overlapping-powers-are-regulated-by-legislation-in-some-of-the-six-6-greater-states) - [**Overlapping *Powers of Attorney*** are regulated by legislation **in California**](https://wiki.powersofattorney.com/whatcanagentdo#overlapping-powers-of-attorney-are-regulated-by-legislation-in-california) - [A principal may record **preferences** in relation to performance of a task](https://wiki.powersofattorney.com/whatcanagentdo#a-principal-may-record-preferences-in-relation-to-performance-of-a-task) - [**There is no substitute for reading** a *Power of Attorney* to identify tasks an agent may perform](https://wiki.powersofattorney.com/whatcanagentdo#there-is-no-substitute-for-reading-a-power-of-attorney-to-identify-tasks-an-agent-may-perform) - [**Non-commercial tasks** in **California** and **Florida**](https://wiki.powersofattorney.com/whatcanagentdo#california-florida-non-commercial-tasks) - [**Care** is **required when defining** tasks](https://wiki.powersofattorney.com/whatcanagentdo#care-is-required-when-defining-authorized-tasks) - [**Commercial entities** must set out statutory tasks in full](https://wiki.powersofattorney.com/whatcanagentdo#care-is-required-when-defining-authorized-tasks) - [Comparing the experience in the United States to **the rest of the world** is interesting](https://wiki.powersofattorney.com/whatcanagentdo#comparing-the-us-to-the-world-is-interesting) - [**REFERENCES**](https://wiki.powersofattorney.com/whatcanagentdo#some-handy-references) - [California](https://wiki.powersofattorney.com/whatcanagentdo#california-1) - [Texas](https://wiki.powersofattorney.com/whatcanagentdo#texas-1) - [New York](https://wiki.powersofattorney.com/whatcanagentdo#new-york-1) - [Florida](https://wiki.powersofattorney.com/whatcanagentdo#florida-1) - [Illinois](https://wiki.powersofattorney.com/whatcanagentdo#illinois-1) - [Pennsylvania](https://wiki.powersofattorney.com/whatcanagentdo#pennsylvania-1) ## Use Of Various Kinds of *Powers of Attorney* As explained in more detail under the sub-headings immediately below, in California:- 1. A *Power of Attorney* may be used to delegate routine tasks of a financial, legal or property nature 2. A *Power of Attorney for Health Care* may be used to delegate health decisions. 3. Either a *Power of Attorney* or a *Power of Attorney for Health Care* may be used to delegate personal care decisions. ## Delegation of Routine Tasks of a Financial, Legal or Property Nature Traditionally, ‘*routine tasks of a financial, legal or property nature*’ that a person might otherwise perform for themselves have been able to be delegated under a *Power of Attorney*. ## Non-Delegable Nature of Extremely Personal Tasks There are a small number of tasks that cannot be delegated using a Power of Attorney, being tasks that involve any of the following:- - matters of personal concern involving a high level of discretion (such as swearing an Affidavit, consenting to marriage, divorce or adopting a child) - exercise of personal taste or expression of a creative or artistic nature (such as fulfilling a contract to paint a portrait of someone, or write an autobiography) - matters that cannot be performed on an objective basis by another [legal entity](https://wiki.powersofattorney.com/terms#meaning-of-legal-entity) (such as voting in an election) ## Delegation of Health & Personal Care Related Tasks California has substantially led the United States with respect to the recognition of rights to delegate health care and personal care decisions. #### Health Care The right to delegate health care decisions was first recognized in legislation in in California in 1983 [^1]. Health care decisions cannot be delegated using a traditional *Power of Attorney* and may only be delegated using a *Power of Attorney for Health Care*. #### Personal Care The right to delegate “personal care” decisions was first recognized in legislation in California with the passing of Chapter 658 in 1999[^2]. Chapter 658 passed in 1999[^3] introduced the original versions of [§4123©](https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=4123&lawCode=PROB) and [§4671(b)](https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=4671&lawCode=PROB) which respectively discuss the delegation of personal care decisions under a *Power of Attorney* or *Power of Attorney for Health Care*, recognizing personal care decisions to include “*where the principal will live, providing meals, hiring household employees, providing transportation, handling mail, and arranging recreation and entertainment*”. ## An Agent Can Perform Commercial Tasks A *Power of Attorney* for [commercial](https://wiki.powersofattorney.com/terms#meaning-of-commercial) purposes may be used to authorize an [agent](https://wiki.powersofattorney.com/agentswhatisagent#an-agent-is-an-entity-appointed-by-the-principal-to-represent-and-bind-the-principal) to perform any [task](https://wiki.powersofattorney.com/whatcanagentdo#there-are-lots-of-examples-of-commercial-tasks) of a [commercial](https://wiki.powersofattorney.com/terms#meaning-of-commercial) nature that the [principal](https://wiki.powersofattorney.com/principal#the-principal-is-the-entity-that-makes-the-power-of-attorney) might otherwise perform for themselves, subject to some [modest limitations](https://wiki.powersofattorney.com/whatcanagentdo#some-tasks-are-unable-to-be-performed-by-an-agent). The range of [tasks](https://wiki.powersofattorney.com/whatcanagentdo#there-are-lots-of-examples-of-commercial-tasks) that an [agent](https://wiki.powersofattorney.com/agentswhatisagent#an-agent-is-an-entity-appointed-by-the-principal-to-represent-and-bind-the-principal) may be authorized to perform is diverse, including but not limited to dealings related to or involving:- - real estate, financial institutions, stocks and bonds, other property - retirement plans, tax matters, legal claims and rights - operation of a business and estate related transactions - control of electronic records, cryptocurrencies and other electronic assets - administrative or expert tasks, tasks relating to a specific transaction, executory, voting and risk management tasks All of these [tasks](https://wiki.powersofattorney.com/whatcanagentdo#there-are-lots-of-examples-of-commercial-tasks) might sensibly be performed by an [agent](https://wiki.powersofattorney.com/agentswhatisagent#an-agent-is-an-entity-appointed-by-the-principal-to-represent-and-bind-the-principal), presumably in conjunction with suitable input from financial planners, accountants and lawyers. ### Examples Of Commercial Tasks There are many examples of [tasks](https://wiki.powersofattorney.com/whatcanagentdo#there-are-lots-of-examples-of-commercial-tasks) that might be delegated using a *Power of Attorney*. | | | | --- | --- | | **Transactional Tasks** | dealing with property, financial and legal transactions (*leases; bank accounts; buying and selling property, collecting debts etc.*) | | **Administrative Tasks** | preparing and filing accounts, including taxation returns; general accounting work; arranging insurances etc. | | **Selection Tasks** | choosing an accountant, lawyer or other service provider for particular purposes etc. | | **Expert Tasks** | arranging access to and use of specialist knowledge, for specialist tasks such as solving a tax problem etc. | | **Supervisory Tasks** | monitoring the activities of others, for example the work of the [principal’s](https://wiki.powersofattorney.com/principal#the-principal-is-the-entity-that-makes-the-power-of-attorney) day-to-day accountant etc. | | **Legal Tasks** | exploring prospects in legal claims; selecting a lawyer etc. | | **Business Tasks** | managing business conducted by the [principal](https://wiki.powersofattorney.com/principal#the-principal-is-the-entity-that-makes-the-power-of-attorney) (*i.e. business conducted by the [principal](https://wiki.powersofattorney.com/principal#the-principal-is-the-entity-that-makes-the-power-of-attorney) in their own name as a sole trader etc.*) | | **Executory Tasks** | executing documents on behalf of the [principal](https://wiki.powersofattorney.com/principal#the-principal-is-the-entity-that-makes-the-power-of-attorney). | | **Voting Tasks** | despite perhaps falling [outside the ambit of legislation](https://wiki.powersofattorney.com/whatcanagentdo#some-tasks-are-unable-to-be-performed-by-an-agent), certain voting [tasks](https://wiki.powersofattorney.com/whatcanagentdo#there-are-lots-of-examples-of-commercial-tasks) may be delegated to an [agent](https://wiki.powersofattorney.com/agentswhatisagent#an-agent-is-an-entity-appointed-by-the-principal-to-represent-and-bind-the-principal). | | **Risks Management** | conducting audits; reviewing risk management processes etc. | In addition to [tasks](https://wiki.powersofattorney.com/whatcanagentdo#there-are-lots-of-examples-of-commercial-tasks) performed for the benefit of the [principal](https://wiki.powersofattorney.com/principal#the-principal-is-the-entity-that-makes-the-power-of-attorney), an [agent](https://wiki.powersofattorney.com/agentswhatisagent#an-agent-is-an-entity-appointed-by-the-principal-to-represent-and-bind-the-principal) may be expressly authorized to perform [tasks](https://wiki.powersofattorney.com/whatcanagentdo#there-are-lots-of-examples-of-commercial-tasks) for the benefit of the [agent](https://wiki.powersofattorney.com/agentswhatisagent#an-agent-is-an-entity-appointed-by-the-principal-to-represent-and-bind-the-principal) or any [third party](https://wiki.powersofattorney.com/terms#meaning-of-third-party), such as arranging payment of [remuneration or expenses](https://wiki.powersofattorney.com/agentswhatisagent#agent-may-be-entitled-to-remuneration-or-expenses) to an [agent](https://wiki.powersofattorney.com/agentswhatisagent#an-agent-is-an-entity-appointed-by-the-principal-to-represent-and-bind-the-principal), payment of living expenses for a family member who is not an [agent](https://wiki.powersofattorney.com/agentswhatisagent#an-agent-is-an-entity-appointed-by-the-principal-to-represent-and-bind-the-principal) or similar. ## The Agent’s Authority Is Specified In The *Power of Attorney* A *Power of Attorney* may specify a single [task](https://wiki.powersofattorney.com/whatcanagentdo#there-are-lots-of-examples-of-commercial-tasks) that an [agent](https://wiki.powersofattorney.com/agentswhatisagent#an-agent-is-an-entity-appointed-by-the-principal-to-represent-and-bind-the-principal) or [agents](https://wiki.powersofattorney.com/agentswhatisagent#an-agent-is-an-entity-appointed-by-the-principal-to-represent-and-bind-the-principal) may perform, or specify multiple [tasks](https://wiki.powersofattorney.com/whatcanagentdo#there-are-lots-of-examples-of-commercial-tasks). The authority given to an [agent](https://wiki.powersofattorney.com/agentswhatisagent#an-agent-is-an-entity-appointed-by-the-principal-to-represent-and-bind-the-principal) under a *Power of Attorney* is limited to the authority specified in the *Power of Attorney.* What [tasks](https://wiki.powersofattorney.com/whatcanagentdo#there-are-lots-of-examples-of-commercial-tasks) an [agent](https://wiki.powersofattorney.com/agentswhatisagent#an-agent-is-an-entity-appointed-by-the-principal-to-represent-and-bind-the-principal) may perform at any given time might involve consideration of matters like:- - the [term](https://wiki.powersofattorney.com/termaboutterm#there-may-be-differences-between-term-term-of-authority-and-term-of-appointment-of-an-agent) of the *Power of Attorney* or [term of authority](https://wiki.powersofattorney.com/termaboutterm#term-term-of-authority-and-term-of-appointment-of-an-agent) of an [agent](https://wiki.powersofattorney.com/agentswhatisagent#an-agent-is-an-entity-appointed-by-the-principal-to-represent-and-bind-the-principal) - [directions](https://wiki.powersofattorney.com/directionwhatis#a-direction-regulates-matters-under-a-power-of-attorney) or [limitations](https://wiki.powersofattorney.com/limitwhatis#a-limitation-qualifies-another-provision-or-principle) recorded in the *Power of Attorney* - what [property](https://wiki.powersofattorney.com/Insightfutureacqprop#three-of-the-six-6-greater-states-define-the-property-relevant-to-a-power-of-attorney) falls within the scope of an [agent’s](https://wiki.powersofattorney.com/agentswhatisagent#an-agent-is-an-entity-appointed-by-the-principal-to-represent-and-bind-the-principal) authority ## **‘Statutory’ Tasks Are Contained In The Legislation Of Many States** In five (5) of the [Six (6) Greater States](https://wiki.powersofattorney.com/introduction#ca-tx-ny-fl-il-and-pa), the [legislation](https://wiki.powersofattorney.com/legislation#the-legislation-governs-powers-of-attorney-for-persons) governing *Powers of Attorney* for a [person](https://wiki.powersofattorney.com/terms#meaning-of-person-ie-natural-person)[^4] contains lengthy, itemized schedules of [tasks](https://wiki.powersofattorney.com/whatcanagentdo#there-are-lots-of-examples-of-commercial-tasks) (*the exception being **Florida***). For convenience, in this Wiki these lengthy, itemised [tasks](https://wiki.powersofattorney.com/whatcanagentdo#statutory-tasks-are-contained-in-the-legislation-of-many-states) are referred to [‘statutory’ tasks](https://wiki.powersofattorney.com/whatcanagentdo#statutory-tasks-are-contained-in-the-legislation-of-many-states). See for example:- - [Division 4.5 Chapter 2](https://law.justia.com/codes/california/2011/prob/division-4-5/4450-4465/) in **California** - [Chapter 752, Subtitle P, Subchapter C](https://law.justia.com/codes/texas/2019/estates-code/title-2/subtitle-p/chapter-752/subchapter-c/) in **Texas** - [§5-1502A to §5-1502N](https://law.justia.com/codes/new-york/2014/gob/article-5/title-15/) in **New York** - [§3-4](https://codes.findlaw.com/il/chapter-755-estates/il-st-sect-755-45-3-4.html) in **Illinois** - [§5603](https://codes.findlaw.com/pa/title-20-pacsa-decedents-estates-and-fiduciaries/pa-csa-sect-20-5603.html) in **Pennsylvania** (see also [§5602(a)](https://codes.findlaw.com/pa/title-20-pacsa-decedents-estates-and-fiduciaries/pa-csa-sect-20-5602.html)) - in **Florida**, only “*banking transactions*” and “*investment transactions*” are defined in the same way (see [§709.2208](https://codes.findlaw.com/fl/title-xl-real-and-personal-property/fl-st-sect-709-2208.html)) There is nothing to prevent a [principal](https://wiki.powersofattorney.com/principal#the-principal-is-the-entity-that-makes-the-power-of-attorney) in any state from adopting [‘statutory’ tasks](https://wiki.powersofattorney.com/whatcanagentdo#statutory-tasks-are-contained-in-the-legislation-of-many-states) from another state in a *Power of Attorney* by citing them in a *Power of Attorney*, being an approach that might be particularly useful in **Florida**, where lengthy ['statutory’ tasks](https://wiki.powersofattorney.com/whatcanagentdo#statutory-tasks-are-contained-in-the-legislation-of-many-states) of a wide variety and nature are not included in the [legislation](https://wiki.powersofattorney.com/legislation#the-legislation-governs-powers-of-attorney-for-persons). Often, the ['statutory’ tasks](https://wiki.powersofattorney.com/whatcanagentdo#statutory-tasks-are-contained-in-the-legislation-of-many-states) as they appear in the [legislation](https://wiki.powersofattorney.com/legislation#the-legislation-governs-powers-of-attorney-for-persons) could benefit from better wording, although this issue is perhaps less important in states with a [‘catch all’ provision](https://wiki.powersofattorney.com/whatcanagentdo#the-defined-statutory-tasks-are-expanded-in-certain-respects) in respect of a *Power of Attorney* for a [person](https://wiki.powersofattorney.com/terms#meaning-of-person-ie-natural-person).[^5]. > **A Special Word About California** > > The following extract from the [1994 California Law Revision Commission Report](http://www.clrc.ca.gov/pub/Printed-Reports/Pub181.pdf) which led to enactment of [Division 4.5 of the Probate Code](https://leginfo.legislature.ca.gov/faces/codes_displayexpandedbranch.xhtml?tocCode=PROB&division=4.5.&title=&part=&chapter=&article=&nodetreepath=6) is informative, speaking of law as it was prior to the amendments and proposed changes (footnotes are in brackets): > > “*The general agency statutes contain a number of statements concerning the power and authority of… [agents]** *but these statements are expressed in broad terms and in an artificial, legalistic language that is unlikely to be of much assistance to an… [agent] under a Power of Attorney. By way of contrast, the Uniform Statutory Form Power of Attorney Act provides for grants of general powers that are amplified in highly detailed statutory language. (See Civ. Code §§ 2475, statutory form, 2485-2499.5, construction of powers). But if a principal sets out to draft his or her own Power of Attorney, the statute provides no real guidance on the extent of the… [agent’s] authority. An attorney-drafted power of attorney should provide the necessary powers, but this will not always be the case. By way of comparison, the settlor of a trust may rely on the general powers provided in the Trust Law. (Prob. Code §§ 16200-16249). The proposed law does not attempt to provide another statement of available powers. Instead, it fleshes out the meaning of a grant of general authority or limited authority to an… [agent]. It also makes clear that an… [agent] granted limited authority has the authority incidental, necessary, or proper to carry out the limited authority. The proposed law also authorizes the incorporation of authority by reference to other provisions, such as the Uniform Statutory Form Power of Attorney Act, the guardianship-conservatorship law, or the Trust Law*”. > > **See, e.g., Civ. Code §§ 2318 - agent has “actually such authority” as provided by title on agency unless “specifically deprived thereof” by the principal), 2307 - authority may be conferred by “a precedent authorization or a subsequent ratification”, 2315 - “agent has such authority as the principal, actually or ostensibly, confers upon him”, 2316 - actual authority is that intentionally conferred on the agent or that the principal “intentionally, or by want of ordinary care, allows the agent to believe himself to possess”, 2317 - ostensible authority is what the principal “intentionally or by want of ordinary care, causes or allows a third person to believe the agent to possess”, 2319 - agent has authority to do “everything necessary or proper and usual, in the ordinary course of business, for effecting the purpose of his agency”, 2320 - agent has power to disobey instructions where “clearly for the interest of his principal that he should do so, and there is not time to communicate with the principal”, 2321 - “When an authority is given partly in general and partly in specific terms, the general authority gives no higher powers than those specifically mentioned”, 2322 - general authority does not authorize the agent to act in his own name, unless it is in the usual course of business, to “define the scope of the agency,” or to violate basic fiduciary principles concerning loyalty, conflict of interest, or commingling.* ### Example Of Statutory Task Accepting that there are roughly fourteen (14) or so ['statutory’ tasks](https://wiki.powersofattorney.com/whatcanagentdo#statutory-tasks-are-contained-in-the-legislation-of-many-states) in the five (5) of the [Six (6) Greater States](https://wiki.powersofattorney.com/introduction#ca-tx-ny-fl-il-and-pa) which prescribe ['statutory’ tasks](https://wiki.powersofattorney.com/whatcanagentdo#statutory-tasks-are-contained-in-the-legislation-of-many-states) it follows that there are around seventy-five (75) odd, independently described ['statutory’ tasks](https://wiki.powersofattorney.com/whatcanagentdo#statutory-tasks-are-contained-in-the-legislation-of-many-states) in the five (5) relevant states. As a mere example of one of the seventy-five (75) odd ['statutory’ tasks](https://wiki.powersofattorney.com/whatcanagentdo#statutory-tasks-are-contained-in-the-legislation-of-many-states), here is an example from **Pennsylvania**, where is said that the words *“**power to engage in real property transactions**”* cited in a *Power of Attorney* for a [person](https://wiki.powersofattorney.com/terms#meaning-of-person-ie-natural-person)[^2] “shall mean” ([§5603](https://codes.findlaw.com/pa/title-20-pacsa-decedents-estates-and-fiduciaries/pa-csa-sect-20-5603.html)): *(1) Acquire or dispose of real property (including the principal’s residence) or any interest therein, including, but not limited to, the power to buy or sell at public or private sale for cash or credit or partly for each; exchange, mortgage, encumber, lease for any period of time; give or acquire options for sales, purchases, exchanges or leases; buy at judicial sale any property on which the principal holds a mortgage.* *(2) Manage, repair, improve, maintain, restore, alter, build, protect or insure real property; demolish structures or develop real estate or any interest in real estate.* *(3) Collect rent, sale proceeds and earnings from real estate; pay, contest, protest and compromise real estate taxes and assessments.* *(4) Release in whole or in part, assign the whole or a part of, satisfy in whole or in part and enforce any mortgage, encumbrance, lien or other claim to real property.* *(5) Grant easements, dedicate real estate, partition and subdivide real estate and file plans, applications or other documents in connection therewith.* *(6) In general, exercise all powers with respect to real property that the principal could if present.* The ‘power to engage in real property transactions’ cited in **Pennsylvania** above has a reciprocal provision in the other states where ['statutory’ tasks](https://wiki.powersofattorney.com/whatcanagentdo#statutory-tasks-are-contained-in-the-legislation-of-many-states) have been adopted:- | | | | --- | --- | | **California** | See [§4451](https://law.justia.com/codes/california/2011/prob/division-4-5/4450-4465/4451/) dealing real property transactions. | | **Texas** | See [§752.102](https://codes.findlaw.com/tx/estates-code/est-sect-752-102.html) dealing real property transactions. | | **New York** | See [§5-1502A](https://www.nysenate.gov/legislation/laws/GOB/5-1502A) dealing with real estate transactions. | | **Illinois** | See [§3-4](https://codes.findlaw.com/il/chapter-755-estates/il-st-sect-755-45-3-4.html) dealing with real estate transactions. | ### Borrowing Wording From Legislation Of Other States In principle, there is nothing to stop a [principal](https://wiki.powersofattorney.com/principal#the-principal-is-the-entity-that-makes-the-power-of-attorney) from either adopting the wording of the various ['statutory’ tasks](https://wiki.powersofattorney.com/whatcanagentdo#statutory-tasks-are-contained-in-the-legislation-of-many-states) in other states, or using those words as a starting point in defining [tasks](https://wiki.powersofattorney.com/whatcanagentdo#there-are-lots-of-examples-of-commercial-tasks) that an [agent](https://wiki.powersofattorney.com/agentswhatisagent#an-agent-is-an-entity-appointed-by-the-principal-to-represent-and-bind-the-principal) may perform. Moreover, in California, it is expressly recognized that powers may be ‘borrowed’ from the guardianship-conservatorship law, or trust law and see For example, a [principal](https://wiki.powersofattorney.com/principal#the-principal-is-the-entity-that-makes-the-power-of-attorney) in **Florida** might benefit from adopting words taken from the description of ['statutory’ tasks](https://wiki.powersofattorney.com/whatcanagentdo#statutory-tasks-are-contained-in-the-legislation-of-many-states) in other states, or use the words in another state as a ‘source of inspiration’ when deciding what words to use in a *Power of Attorney*. It would not be satisfactory to attempt to insert words into a *Power of Attorney* taken from the [legislation](https://wiki.powersofattorney.com/legislation#the-legislation-governs-powers-of-attorney-for-persons) of another state by ‘[mere reference](https://wiki.powersofattorney.com/whatcanagentdo#in-some-circumstances-incorporation-may-be-achieved-by-mere-reference)’. The words would need to be recited in full. This option may be valuable where one state has included more detail in its [legislation](https://wiki.powersofattorney.com/legislation#the-legislation-governs-powers-of-attorney-for-persons) than another state. For example, **Pennsylvania** has very specific wording in its [legislation](https://wiki.powersofattorney.com/legislation#the-legislation-governs-powers-of-attorney-for-persons) dealing with precisely with “*power to make additions to an existing trust*” in [§5603©](https://codes.findlaw.com/pa/title-20-pacsa-decedents-estates-and-fiduciaries/pa-csa-sect-20-5603.html), which may be a ‘source of inspiration’ for anyone trying to define such a power. Borrowing wording from the [legislation](https://wiki.powersofattorney.com/legislation#the-legislation-governs-powers-of-attorney-for-persons) may be particularly useful where the [principal](https://wiki.powersofattorney.com/principal#the-principal-is-the-entity-that-makes-the-power-of-attorney) is:- - a [person](https://wiki.powersofattorney.com/terms#meaning-of-person-ie-natural-person) that is [excluded](https://wiki.powersofattorney.com/legislation#exclusions) from being governed by the [legislation](https://wiki.powersofattorney.com/legislation#the-legislation-governs-powers-of-attorney-for-persons) - a [commercial entity](https://wiki.powersofattorney.com/terms#meaning-of-commercial-entity) > **A Special Word About California** > > The following extract from the [1994 California Law Revision Commission Report](http://www.clrc.ca.gov/pub/Printed-Reports/Pub181.pdf) which led to enactment of [Division 4.5 of the Probate Code](https://leginfo.legislature.ca.gov/faces/codes_displayexpandedbranch.xhtml?tocCode=PROB&division=4.5.&title=&part=&chapter=&article=&nodetreepath=6) is informative, speaking of the proposed new law: > > *The proposed law also authorizes the incorporation of authority by reference to other provisions, such as the Uniform Statutory Form Power of Attorney Act, the guardianship-conservatorship law, or the Trust Law…*" (see [§4263](https://codes.findlaw.com/ca/probate-code/prob-sect-4263.html)) ### In Some Circumstances Incorporation May Be Achieved By Mere Reference In respect of a *Powers of Attorney* for a [person](https://wiki.powersofattorney.com/terms#meaning-of-person-ie-natural-person):[^6] - [legislation](https://wiki.powersofattorney.com/legislation#the-legislation-governs-powers-of-attorney-for-persons) often works such that a [‘statutory’ task](https://wiki.powersofattorney.com/whatcanagentdo#statutory-tasks-are-contained-in-the-legislation-of-many-states) may be incorporated by ‘[mere reference](https://wiki.powersofattorney.com/whatcanagentdo#in-some-circumstances-incorporation-may-be-achieved-by-mere-reference)’ - in some states, this is only possible if a [government form](https://wiki.powersofattorney.com/governmentforms#government-forms-in-ca-tx-ny-il) is used Where this is permitted, the ‘headline’ for a particular [statutory’ task](https://wiki.powersofattorney.com/whatcanagentdo#statutory-tasks-are-contained-in-the-legislation-of-many-states) may be included in a *Power of Attorney* with the effect of incorporating the reciprocal content in the [legislation](https://wiki.powersofattorney.com/legislation#the-legislation-governs-powers-of-attorney-for-persons) formed part of the *Power of Attorney*, although there may be purpose in making this intention clear in a [non-statutory](https://wiki.powersofattorney.com/typescommonlyusedpersons#non-statutory-powers-of-attorney) *Power of Attorney*. | | | | --- | --- | | **California** | The [statutory’ tasks](https://wiki.powersofattorney.com/whatcanagentdo#statutory-tasks-are-contained-in-the-legislation-of-many-states) only may be incorporated into a [government form](https://wiki.powersofattorney.com/governmentforms#government-forms-in-ca-tx-ny-il) (see [§4450](https://codes.findlaw.com/ca/probate-code/prob-sect-4450.html) to [§4463](https://codes.findlaw.com/ca/probate-code/prob-sect-4463.html)) | | **Texas** | [§751.034](https://codes.findlaw.com/tx/estates-code/est-sect-751-034.html) provides:- *"(a) An agent has authority described in this chapter if the durable power of attorney refers to general authority with respect to the descriptive term for the subjects stated in Chapter 752 or cites the section in which the authority is described; (b) A reference in a durable power of attorney to general authority with respect to the descriptive term for a subject in Chapter 752 or a citation to one of those sections incorporates the entire section as if the section were set out in its entirety in the power of attorney; © A principal may modify authority incorporated by reference.*" | | **New York** | The [statutory’ tasks](https://wiki.powersofattorney.com/whatcanagentdo#statutory-tasks-are-contained-in-the-legislation-of-many-states) only may be incorporated into a [government form](https://wiki.powersofattorney.com/governmentforms#government-forms-in-ca-tx-ny-il) (see [§5-1502A](https://codes.findlaw.com/ny/general-obligations-law/gob-sect-5-1502a.html) to [§5-1502N](https://codes.findlaw.com/ny/general-obligations-law/gob-sect-5-1502N.html) | | **Florida** | [§709.2208](https://codes.findlaw.com/fl/title-xl-real-and-personal-property/fl-st-sect-709-2208.html) states: A *Power of Attorney* that includes the statement that the agent has “*authority to conduct banking transactions as provided in section 709.2208(1), Florida Statutes*” grants general authority to the agent to engage in a substantial list of specific kinds of transactions and similarly, inclusion of the words “*authority to conduct investment transactions as provided in section 709.2208(2), Florida Statutes*” incorporates another lengthy list of transactions | | **Illinois** | The [statutory’ tasks](https://wiki.powersofattorney.com/whatcanagentdo#statutory-tasks-are-contained-in-the-legislation-of-many-states) only may be incorporated into a [government form](https://wiki.powersofattorney.com/governmentforms#government-forms-in-ca-tx-ny-il) (see [§3-4](https://codes.findlaw.com/il/chapter-755-estates/il-st-sect-755-45-3-4.html)) | | **Pennsylvania** | [§5602](https://codes.findlaw.com/pa/title-20-pacsa-decedents-estates-and-fiduciaries/pa-csa-sect-20-5602.html) states “…*a principal may, by inclusion of the language quoted in any of the following paragraphs or by inclusion of other language showing a similar intent on the part of the principal, empower an agent to do any or all of the following, each of which is defined in section 5603 (relating to implementation of power of attorney)*…” before a list of [statutory tasks](https://wiki.powersofattorney.com/whatcanagentdo#statutory-tasks-are-contained-in-the-legislation-of-many-states) | As referred to above and below, there are fourteen (14) or so common types of [‘statutory’ tasks](https://wiki.powersofattorney.com/whatcanagentdo#statutory-tasks-are-contained-in-the-legislation-of-many-states) that like “real property transactions” are included in the [legislation](https://wiki.powersofattorney.com/legislation#the-legislation-governs-powers-of-attorney-for-persons) of five (5) of the [Six (6) Greater States](https://wiki.powersofattorney.com/introduction#ca-tx-ny-fl-il-and-pa), each with slightly different wording (*the exception being **Florida***). ### The Defined Statutory Tasks Are Expanded In Certain Respects **NOTE** The [legislation](https://wiki.powersofattorney.com/legislation#the-legislation-governs-powers-of-attorney-for-persons) dealing with [statutory tasks](https://wiki.powersofattorney.com/whatcanagentdo#statutory-tasks-are-contained-in-the-legislation-of-many-states) (see [§4450](https://codes.findlaw.com/ca/probate-code/prob-sect-4450.html) to [§4463](https://codes.findlaw.com/ca/probate-code/prob-sect-4463.html))) speaks of certain words denoting certain powers (i.e. the [statutory tasks](https://wiki.powersofattorney.com/whatcanagentdo#statutory-tasks-are-contained-in-the-legislation-of-many-states)) in a [government form](https://wiki.powersofattorney.com/governmentforms#government-forms-in-ca-tx-ny-il) and yet, in **California**, [§4050](https://codes.findlaw.com/ca/probate-code/prob-sect-4050.html) [Legislation](https://wiki.powersofattorney.com/legislation#the-legislation-governs-powers-of-attorney-for-persons) governing *Powers of Attorney* for a [person](https://wiki.powersofattorney.com/terms#meaning-of-person-ie-natural-person)[^7] adds nuances to the scope of the schedules of [‘statutory’ tasks](https://wiki.powersofattorney.com/whatcanagentdo#statutory-tasks-are-contained-in-the-legislation-of-many-states), for example:- - as seen above in **Pennsylvania** in respect of real property transactions, authority in respect of a specific task includes general authority to ‘*exercise all powers*’ or similar with respect to the given ['statutory’ task](https://wiki.powersofattorney.com/whatcanagentdo#statutory-tasks-are-contained-in-the-legislation-of-many-states) - in **California**, [§4262](https://codes.findlaw.com/ca/probate-code/prob-sect-4262.html) expressly entitles an [agent](https://wiki.powersofattorney.com/agentswhatisagent#an-agent-is-an-entity-appointed-by-the-principal-to-represent-and-bind-the-principal) to do anything “*incidental, necessary, or proper to carry out the granted authority*” the [tasks](https://wiki.powersofattorney.com/whatcanagentdo#there-are-lots-of-examples-of-commercial-tasks) they are expressly authorized to perform in a *Power of Attorney*, being words which travel outside the scope of [‘statutory’ task](https://wiki.powersofattorney.com/whatcanagentdo#statutory-tasks-are-contained-in-the-legislation-of-many-states) and go to any and all [tasks](https://wiki.powersofattorney.com/whatcanagentdo#there-are-lots-of-examples-of-commercial-tasks) that an [agent](https://wiki.powersofattorney.com/agentswhatisagent#an-agent-is-an-entity-appointed-by-the-principal-to-represent-and-bind-the-principal) is authorized to perform - in **Texas**, [§752.101(11)](https://codes.findlaw.com/tx/estates-code/est-sect-752-101.html) entitles an [agent](https://wiki.powersofattorney.com/agentswhatisagent#an-agent-is-an-entity-appointed-by-the-principal-to-represent-and-bind-the-principal) to perform any other [task](https://wiki.powersofattorney.com/whatcanagentdo#there-are-lots-of-examples-of-commercial-tasks) falling within the scope of the fourteen (14) tasks set out in [Subchapter C](https://law.justia.com/codes/texas/2019/estates-code/title-2/subtitle-p/chapter-752/subchapter-c/) and also by virtue of [§752.101(11)](https://codes.findlaw.com/tx/estates-code/est-sect-752-101.html) “*in general, perform any other lawful act that the principal may perform with respect to the transaction*”’ - in **Illinois**, [§3-4](https://codes.findlaw.com/il/chapter-755-estates/il-st-sect-755-45-3-4.html) and in **New York** [§5-1502N](https://codes.findlaw.com/ny/general-obligations-law/gob-sect-5-1502n.html) prescribe additional ‘catch-all’ tasks covering matters not forming part of one of the specific [‘statutory’ tasks](https://wiki.powersofattorney.com/whatcanagentdo#statutory-tasks-are-contained-in-the-legislation-of-many-states), albeit the scope of [§3-4](https://codes.findlaw.com/il/chapter-755-estates/il-st-sect-755-45-3-4.html) which speaks of “*all other property transactions*…” said to refer to "…*all possible authority of the principal with respect to all possible types of property and interests in property…* seems more confined than [§5-1502N](https://codes.findlaw.com/ny/general-obligations-law/gob-sect-5-1502n.html) which speaks of authority to perform “*all other matters*” said to “…*be construed to mean that the principal authorizes the agent to act as an alter ego of the principal with respect to any and all possible matters and affairs which are not enumerated in sections 5-1502A to 5-1502M, inclusive, of this title, and which the principal can do through an agent*…” > **A Special Word About California** > > The following extract from the [1994 California Law Revision Commission Report](http://www.clrc.ca.gov/pub/Printed-Reports/Pub181.pdf) which led to enactment of [Division 4.5 of the Probate Code](https://leginfo.legislature.ca.gov/faces/codes_displayexpandedbranch.xhtml?tocCode=PROB&division=4.5.&title=&part=&chapter=&article=&nodetreepath=6) is informative in respect of use of the [government form](https://wiki.powersofattorney.com/governmentforms#government-forms-in-ca-tx-ny-il): > > *Neither the form in this section, nor the constructional provisions in Sections 4450-4464, attempt to allow the grant of the power to make a will or to give the agent extensive estate planning authority, although several of the powers, especially lines (G), (H), and (L) of the statutory form, may be useful in planning the disposition of an estate. An individually tailored power of attorney can be used if the principal wants to give the agent extensive estate planning authority, or additional estate planning powers can be granted to the agent by stating those additional powers in the space provided in the form for “Special Instructions.” For example, provisions like the following might be included under the special instructions portion of the statutory form:* > > *In addition to the powers listed in lines (A) to (M) above, the agent is empowered to do all of the following:* > > *(1) Establish a trust with property of the principal for the benefit of the principal and the spouse and descendants of the principal, or any one or more of them, upon such terms as the agent determines are necessary or proper, and transfer any property in which the principal has an interest to the trust.* > > *(2) Exercise in whole or in part, release, or let lapse any power the principal may have under any trust whether or not created by the principal, including any power of appointment, revocation, or withdrawal, but a trust created by the principal may only be modified or revoked by the agent as provided in the trust instrument.* > > *(3) Make a gift, grant, or other transfer without consideration to or for the benefit of the spouse or descendants of the principal or a charitable organization, or more than one or all of them, either outright or in trust, including the forgiveness of indebtedness and the completion of any charitable pledges the principal may have made; consent to the splitting of gifts under Internal Revenue Code Section 2513, or successor Sections if the spouse of the principal makes gifts to any one or more of the descendants of the principal or to a charitable institution; pay any gift tax that may arise by reason of those gifts.* > > *(4) Loan any of the property of the principal to the spouse or descendants of the principal, or their personal representatives or a trustee for their benefit, the loan bearing such interest, and to be secured or unsecured, as the agent determines advisable.* > > *(5) In general, and in addition to all the specific acts enumerated, do any other act which the principal can do through an agent for the welfare of the spouse, children, or dependents of the principal or for the preservation and maintenance of other personal relationships of the principal to parents, relatives, friends, and organizations."* ### The Statutory Tasks Have Limited Application In Some States The [‘statutory’ tasks](https://wiki.powersofattorney.com/whatcanagentdo#statutory-tasks-are-contained-in-the-legislation-of-many-states) and associated wording in the [legislation](https://wiki.powersofattorney.com/legislation#the-legislation-governs-powers-of-attorney-for-persons) may have limited application in some settings. #### Inability To Include By ‘Mere Reference’ For example, consider the position in **New York** and **Illinois**, where [‘statutory’ tasks](https://wiki.powersofattorney.com/whatcanagentdo#statutory-tasks-are-contained-in-the-legislation-of-many-states) cannot be incorporated by [mere reference](https://wiki.powersofattorney.com/whatcanagentdo#in-some-circumstances-incorporation-may-be-achieved-by-mere-reference) in a custom-made *Power of Attorney*:- - in **New York** and **Illinois**, the ‘expanding provisions’ referred to under the heading [The Defined Statutory Tasks Are Expanded In Certain Respects](https://wiki.powersofattorney.com/whatcanagentdo#the-defined-statutory-tasks-are-expanded-in-certain-respects) above cannot be implemented as part of a custom-made *Power of Attorney* (*i.e. a [non-statutory](https://wiki.powersofattorney.com/typescommonlyusedpersons#non-statutory-powers-of-attorney) Power of Attorney*) - nonetheless, a [principal](https://wiki.powersofattorney.com/principal#the-principal-is-the-entity-that-makes-the-power-of-attorney) might include the words making up the ‘[expanding provisions](https://wiki.powersofattorney.com/whatcanagentdo#the-defined-statutory-tasks-are-expanded-in-certain-respects) found in the [legislation](https://wiki.powersofattorney.com/legislation#the-legislation-governs-powers-of-attorney-for-persons) of their own state or perhaps another state’ in their *Power of Attorney* - in such event, it is uncertain what effect these words would have and entirely possible, if not likely, that these words may attract a different meaning to that meaning they have in the context in which they were intended to operate, that is, words mirroring those in [legislation](https://wiki.powersofattorney.com/legislation#the-legislation-governs-powers-of-attorney-for-persons) simply included in a *Power of Attorney* might be given a meaning that is different to the meaning they are given when read as part of the [legislation](https://wiki.powersofattorney.com/legislation#the-legislation-governs-powers-of-attorney-for-persons) ## Incorporation Of Statutory Tasks By Mere Reference Into a Non-Durable *Power of Attorney* in Texas In **Texas** the [‘statutory’ tasks](https://wiki.powersofattorney.com/whatcanagentdo#statutory-tasks-are-contained-in-the-legislation-of-many-states) strictly operate in respect of a [durable](https://wiki.powersofattorney.com/typescommonlyusedpersons#durable-powers-of-attorney) *Power of Attorney* for a [person](https://wiki.powersofattorney.com/terms#meaning-of-person-ie-natural-person).[^8] in **Texas**, attempting to incorporate the [‘statutory’ tasks](https://wiki.powersofattorney.com/whatcanagentdo#statutory-tasks-are-contained-in-the-legislation-of-many-states) into a [non-durable](https://wiki.powersofattorney.com/typescommonlyusedpersons#non-durable-powers-of-attorney) *Power of Attorney* or a *Power of Attorney* [excluded](https://wiki.powersofattorney.com/legislation#exclusions) from the ambit of the [legislation](https://wiki.powersofattorney.com/legislation#the-legislation-governs-powers-of-attorney-for-persons) or for a [commercial entity](https://wiki.powersofattorney.com/terms#meaning-of-commercial-entity) would seem risky at best. Preferably, in respect of a [non-durable](https://wiki.powersofattorney.com/typescommonlyusedpersons#non-durable-powers-of-attorney) *Power of Attorney* in **Texas**, the content of any [statutory’ task](https://wiki.powersofattorney.com/whatcanagentdo#statutory-tasks-are-contained-in-the-legislation-of-many-states) would be recited in full in a *Power of Attorney*. ## The Statutory Tasks Have Similarities In Many Of The Six (6) Greater States The following broadly defined [‘statutory’ tasks](https://wiki.powersofattorney.com/whatcanagentdo#statutory-tasks-are-contained-in-the-legislation-of-many-states) operate in most of the [Six (6) Greater States](https://wiki.powersofattorney.com/introduction#ca-tx-ny-fl-il-and-pa) that have substantive [‘statutory’ tasks](https://wiki.powersofattorney.com/whatcanagentdo#statutory-tasks-are-contained-in-the-legislation-of-many-states) (**Florida** being an exception):- - Real Estate Transactions - Financial Institutions Transactions - Stock & Bond Transactions - Tangible Property Transactions - Insurance and Annuities Transactions - Retirement Plans Transactions - Government Benefits Transactions - Tax Transactions - Claims & Litigation - Commodity & Option Transactions - Business Operations - Estate Transactions Beyond these common [‘statutory’ tasks](https://wiki.powersofattorney.com/whatcanagentdo#statutory-tasks-are-contained-in-the-legislation-of-many-states): - in **Illinois** and **New York**, a broad ‘all other property’ category of [‘statutory’ task](https://wiki.powersofattorney.com/whatcanagentdo#statutory-tasks-are-contained-in-the-legislation-of-many-states) exists ([§3-4](https://codes.findlaw.com/il/chapter-755-estates/il-st-sect-755-45-3-4.html) and [§5-1502N](https://codes.findlaw.com/ny/general-obligations-law/gob-sect-5-1502n.html)) - in **Pennsylvania**, **New York**, **Texas** and **California** (not **Illinois**) personal and family maintenance transactions are included - in **Florida** and **Pennsylvania**, safe deposit box transactions are a separate [‘statutory’ task](https://wiki.powersofattorney.com/whatcanagentdo#statutory-tasks-are-contained-in-the-legislation-of-many-states) whilst in other states, they may for example, form part of banking transactions - in **Texas**, digital asset & electronic communications are a specific [‘statutory’ task](https://wiki.powersofattorney.com/whatcanagentdo#statutory-tasks-are-contained-in-the-legislation-of-many-states) ## An Agent May Be Granted General Authority In most states a [principal](https://wiki.powersofattorney.com/principal#the-principal-is-the-entity-that-makes-the-power-of-attorney) in respect of a *Power of Attorney* for a [person](https://wiki.powersofattorney.com/terms#meaning-of-person-ie-natural-person)[^9] may define the scope of authority of an [agent](https://wiki.powersofattorney.com/agentswhatisagent#an-agent-is-an-entity-appointed-by-the-principal-to-represent-and-bind-the-principal) appointed under a *Power of Attorney* using words similar to "*an agent may perform any task that might be performed by an agent for the benefit of the principal".* This kind of *Power of Attorney* is often said to involve a “*grant of general authority”,* referred to as a [general](https://wiki.powersofattorney.com/typescommonlyusedpersons#general-powers-of-attorney) *Power of Attorney* and in the [legislation](https://wiki.powersofattorney.com/legislation#the-legislation-governs-powers-of-attorney-for-persons) governing *Powers of Attorney* for a [person](https://wiki.powersofattorney.com/terms#meaning-of-person-ie-natural-person)[^10]:- - **California** ([§4123](https://codes.findlaw.com/ca/probate-code/prob-sect-4123.html)) and **Texas** ([§751.031](https://codes.findlaw.com/tx/estates-code/est-sect-751-031.html)) expressly recognize the concept of a [general](https://wiki.powersofattorney.com/typescommonlyusedpersons#general-powers-of-attorney) *Power of Attorney* in their [legislation](https://wiki.powersofattorney.com/legislation#the-legislation-governs-powers-of-attorney-for-persons) - in **New York**, [legislation](https://wiki.powersofattorney.com/legislation#the-legislation-governs-powers-of-attorney-for-persons) contains reference to general grants, for example in [§5-1514](https://codes.findlaw.com/ny/general-obligations-law/gob-sect-5-1514.html) - **Illinois** recognizes an all embracing wide power on the part of a [principal](https://wiki.powersofattorney.com/principal#the-principal-is-the-entity-that-makes-the-power-of-attorney) to structure their affairs however they see fit without otherwise referring to general powers ([§2-1](https://codes.findlaw.com/il/chapter-755-estates/il-st-sect-755-45-2-1.html)): *“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…*” - **Pennsylvania** states in [§5601.4](https://codes.findlaw.com/pa/title-20-pacsa-decedents-estates-and-fiduciaries/pa-csa-sect-20-5601-4.html):- “*© Scope of authority.-*Subject to subsections (a), (b), (d), (d.1) and (e), if a power of attorney grants to an agent authority to do all acts that a principal is authorized to perform, the agent has all of the powers which may be incorporated by reference pursuant to section* [§5602(a)](https://codes.findlaw.com/pa/title-20-pacsa-decedents-estates-and-fiduciaries/pa-csa-sect-20-5602.html)*…” Within the [Six (6) Greater States](https://wiki.powersofattorney.com/introduction#ca-tx-ny-fl-il-and-pa) only **Florida** has prohibited the use of [general](https://wiki.powersofattorney.com/typescommonlyusedpersons#general-powers-of-attorney) *Powers of Attorney*[^11] [§709.2201(1)](https://codes.findlaw.com/fl/title-xl-real-and-personal-property/fl-st-sect-709-2201.html). ## Tasks May Be Allocated To Be Performed Many Different Ways [Tasks](https://wiki.powersofattorney.com/whatcanagentdo#there-are-lots-of-examples-of-commercial-tasks) may be assigned to be performed for example by agreement, independently or by majority. There are a [wide number of alternatives](https://wiki.powersofattorney.com/agenttaskalloc#tasks-may-be-allocated-differently-to-different-agents). ## Tasks That An Agent Cannot Perform Traditionally, a Power of Attorney could be used for a wide scope of purposes, although certain tasks of ‘an extremely personal nature’ were and remain today, excluded. Traditionally, delegable tasks included all routine tasks that you might otherwise perform yourself of a financial, legal or property nature. As to the line between ordinary and extremely personal tasks, the following observation in Rich Printing Co. v. Estate of McKellar, Tennessee (1959) [^4] is a useful starting point:- *“It is axiomatic that an agency may be created for any lawful act and that **whatever a person may lawfully do, if acting in his own right and in his own behalf**, he may delegate that authority to an agent. It is also axiomatic that authority cannot be lawfully delegated which is illegal, immoral or opposed to public policy…”* On the question of excluded tasks, Mallory v Mallory (1982) [^1] is insightful:- *“While a principal might very well be bound by the acts of his agent if the agent were to purchase a car on behalf of the principal, or if the agent were to sell certain goods on behalf of the principal, **such is not the case** where an agent seeks to obtain a divorce for the principal. In such a situation, you are not dealing with commonplace affairs of the marketplace, but rather **in an area of extremely personal concern** and one over which there will be strict surveillance by our courts…”* Also insightful, is the following observation from Rich Printing Co. v. Estate of McKellar, Tennessee (1959) [^2]: “…[no one]… can …delegate an act which is personal in its nature, such as designating an agency to perform a personal duty or a personal trust.” This extract from In re the Appointment of a Guardian of the Personal Needs & Financial Affairs of G.W. [51 Misc. 3d 998, 29 N.Y.S.3d 755 (2016)](https://cite.case.law/misc-3d/51/998/) is also insightful: *"A fiduciary cannot fully delegate her fiduciary powers by granting a general power of attorney. (Matter of Jones, [1 Misc 3d 688](https://cite.case.law/misc-3d/1/688/) [Sur Ct, Broome County 2003].) An agent under a power of attorney cannot obtain a divorce for a principal by relying on the “all other matters” clause of the power of attorney (Mallory v Mallory, [113 Misc 2d 912](https://cite.case.law/misc-2d/113/912/) [Sup Ct, Nassau County 1982]), nor modify a trust instrument where neither the trust nor the power of attorney specifically authorize that (Matter of Goetz, [8 Misc 3d 200](https://cite.case.law/misc-3d/8/200/) [Sur Ct, Westchester County 2005])*. *The actions sought to be taken by Carol as attorney-in-fact here are not for her own financial benefit, so they are not contrary to the fiduciary standard applicable to an agent. (See Matter of Ferrara, [7 NY3d 244 [2006]](https://cite.case.law/ny3d/7/244/).) They do not adversely affect or enhance personal financial rights or obligations of the principal, a factor in both Mallory and Goetz.* *Carol is using the power of attorney to exercise limited fiduciary authority on behalf of her mother, to effectuate her resignation and replacement, in the best interest of the ward. On these facts, this exercise of authority by Carol falls within the scope of the “estate transactions” section of the power of attorney, pursuant to which an agent is authorized “to represent and to act for the principal in all ways and in all matters affecting any estate of a[n] . . . incompetent . . . with respect to which the principal is a fiduciary.” (General Obligations Law § 5-1502G [2].) This exercise is no more personal or discretionary than the execution of a waiver and consent to probate (Matter of Murray, [14 Misc 3d 591](https://cite.case.law/misc-3d/14/591/) [Sur Ct, Erie County 2006]) or a right of election (Matter of Lando, [11 Misc 3d 866](https://cite.case.law/misc-3d/11/866/) [Sur Ct, Rockland County 2006]; see Matter of Perosi v LiGreci, [98 AD3d 230](https://cite.case.law/ad3d/98/230/#p237), 237 [2d Dept 2012])."* Consistent with the cases referred to above, in California (and many other states) a Power of Attorney cannot be used to authorize someone else to write a will (see [§4265](https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=PROB§ionNum=4265.), mirrored in [§709.2201(3)](https://codes.findlaw.com/fl/title-xl-real-and-personal-property/fl-st-sect-709-2201.html) in Florida and [§3-4](https://codes.findlaw.com/il/chapter-755-estates/il-st-sect-755-45-3-4.html) in Illinois) and for example, in Florida [§709.2201(3)](https://codes.findlaw.com/fl/title-xl-real-and-personal-property/fl-st-sect-709-2201.html) someone else cannot be authorized to:- • perform duties under a contract that requires the exercise of personal services of the principal • make any affidavit as to the personal knowledge of the principal • vote in any public election on behalf of the principal • exercise powers and authority granted to the principal as trustee or as court-appointed fiduciary The reference to contracts that require “the exercise of personal services” is commonly illustrated by reference to the example of painting of a portrait, being such a uniquely personal task that a portrait painted by someone else would be no substitute. Other “extremely personal” tasks inherently likely to be beyond the possible authority of an [agent](https://wiki.powersofattorney.com/agentswhatisagent#an-agent-is-an-entity-appointed-by-the-principal-to-represent-and-bind-the-principal) seem likely to include consenting to marriage or divorce, adoption of a child, entering surrogacy arrangements. No doubt, this is not a conclusive list. Of course, no [task](https://wiki.powersofattorney.com/whatcanagentdo#there-are-lots-of-examples-of-commercial-tasks) could possibly be authorized to be performed by an [agent](https://wiki.powersofattorney.com/agentswhatisagent#an-agent-is-an-entity-appointed-by-the-principal-to-represent-and-bind-the-principal) under a *Power of Attorney* obtained authority by improper means.[^12] ### Legislation in California, Florida & Illinois In **California**, **Florida** and **Illinois** for example, the making of a will by an [agent](https://wiki.powersofattorney.com/agentswhatisagent#an-agent-is-an-entity-appointed-by-the-principal-to-represent-and-bind-the-principal) appointed under a *Power of Attorney* for a [person](https://wiki.powersofattorney.com/terms#meaning-of-person-ie-natural-person)[^13] is expressly prohibited: [§4265](https://codes.findlaw.com/ca/probate-code/prob-sect-4265.html); [§709.2201(3)](https://codes.findlaw.com/fl/title-xl-real-and-personal-property/fl-st-sect-709-2201.html) and [§3-4](https://codes.findlaw.com/il/chapter-755-estates/il-st-sect-755-45-3-4.html). In **Florida**, [§709.2201(3)](https://codes.findlaw.com/fl/title-xl-real-and-personal-property/fl-st-sect-709-2201.html) provides that an [agent](https://wiki.powersofattorney.com/agentswhatisagent#an-agent-is-an-entity-appointed-by-the-principal-to-represent-and-bind-the-principal) appointed under a *Power of Attorney* for a [person](https://wiki.powersofattorney.com/terms#meaning-of-person-ie-natural-person)[^14] cannot:- - perform duties under a contract that requires the exercise of personal services of the [principal](https://wiki.powersofattorney.com/principal#the-principal-is-the-entity-that-makes-the-power-of-attorney) - make any affidavit as to the personal knowledge of the [principal](https://wiki.powersofattorney.com/principal#the-principal-is-the-entity-that-makes-the-power-of-attorney) - vote in any public election on behalf of the [principal](https://wiki.powersofattorney.com/principal#the-principal-is-the-entity-that-makes-the-power-of-attorney) - execute or revoke any will or codicil for the [principal](https://wiki.powersofattorney.com/principal#the-principal-is-the-entity-that-makes-the-power-of-attorney) - exercise powers and authority granted to the [principal](https://wiki.powersofattorney.com/principal#the-principal-is-the-entity-that-makes-the-power-of-attorney) as trustee or as court-appointed fiduciary **Florida** is the only one of the [Six (6) Greater States](https://wiki.powersofattorney.com/introduction#ca-tx-ny-fl-il-and-pa) to [codify](https://wiki.powersofattorney.com/terms#meaning-of-codified) principles of this kind in fuller terms. The list above from the [legislation](https://wiki.powersofattorney.com/legislation#the-legislation-governs-powers-of-attorney-for-persons) of **Florida** is not intended to be conclusive. ### Personal and Health Care Tasks #### California & Florida Within the [Six (6) Greater States](https://wiki.powersofattorney.com/introduction#ca-tx-ny-fl-il-and-pa), **California** and **Florida** include scope for an [agent](https://wiki.powersofattorney.com/agentswhatisagent#an-agent-is-an-entity-appointed-by-the-principal-to-represent-and-bind-the-principal) under a *Power of Attorney* for a [person](https://wiki.powersofattorney.com/terms#meaning-of-person-ie-natural-person)[^15] that is otherwise for [commercial](https://wiki.powersofattorney.com/terms#meaning-of-commercial) purposes to perform certain [non-commercial](https://wiki.powersofattorney.com/terms#meaning-of-non-commercial) tasks:- - **California** recognizes the right of an [agent](https://wiki.powersofattorney.com/agentswhatisagent#an-agent-is-an-entity-appointed-by-the-principal-to-represent-and-bind-the-principal) to perform “personal” tasks (§4123) - **Florida** speaks of “health” care tasks ([§709.2201](https://codes.findlaw.com/fl/title-xl-real-and-personal-property/fl-st-sect-709-2201.html)) In **New York**, **Florida**, **Texas** or **Pennsylvania**, there are no similar provisions In **Illinois**, [legislation](https://wiki.powersofattorney.com/legislation#the-legislation-governs-powers-of-attorney-for-persons) is significantly intertwined with [legislation](https://wiki.powersofattorney.com/legislation#the-legislation-governs-powers-of-attorney-for-persons) applicable to *Powers of Attorney* for health care purposes, although the use of two separate documents is contemplated.[^16] ## Gifting The decision of the New York Court of Appeals in Re the Estate of Ferrara, [7 N.Y.3d 244, 819 N.Y.S.2d 215, 852 N.E.2d 138 (2006)](https://cite.case.law/ny3d/7/244/#p254) contains useful insight about gifting powers. "…*the best interest requirement is consistent with the fiduciary duties that courts have historically imposed on attorneys-in-fact. “[A] power of attorney … is clearly given with the intent that the attorney-in-fact will utilize that power for the benefit of the principal” (Mantella v Mantella, [268 AD2d 852](https://cite.case.law/ad2d/268/852/), 852 [3d Dept 2000] [internal quotation marks and citation omitted]). Because “[t]he relationship of an attorney-in-fact to his principal is that of agent and principal . . . , the attorney-in-fact must act in the utmost good faith and undivided loyalty toward the principal, and must act in accordance with the highest principles of morality, fidelity, loyalty and fair dealing” (Semmler v Naples, [166 AD2d 751, 752](https://cite.case.law/ad2d/166/751/) [3d Dept 1990] [internal quotation marks and citations omitted]*). *In short, whether the gift-giving power in a statutory short form power of attorney is limited to the authority spelled out in lettered subdivision (M) in section 5-1501 (1), or augmented by additional language in conformity with section 5-1503, the best interest requirement remains*." ## Performance Of Special And Hot Tasks Is Restricted In the [Six (6) Greater States](https://wiki.powersofattorney.com/introduction#ca-tx-ny-fl-il-and-pa), [legislation](https://wiki.powersofattorney.com/legislation#the-legislation-governs-powers-of-attorney-for-persons) applying to *Powers of Attorney* for [persons](https://wiki.powersofattorney.com/terms#meaning-of-person-ie-natural-person)[^17] prohibits an [agent](https://wiki.powersofattorney.com/agentswhatisagent#an-agent-is-an-entity-appointed-by-the-principal-to-represent-and-bind-the-principal) from being authorized to perform certain ‘[special](https://wiki.powersofattorney.com/whatcanagentdo#performance-of-special-and-hot-tasks-is-restricted)’ and ‘[hot](https://wiki.powersofattorney.com/whatcanagentdo#performance-of-special-and-hot-tasks-is-restricted)’ tasks:- | | | | --- | --- | | **‘[Special](https://wiki.powersofattorney.com/whatcanagentdo#performance-of-special-and-hot-tasks-is-restricted)’ Tasks** | tasks for the benefit of an [agent](https://wiki.powersofattorney.com/agentswhatisagent#an-agent-is-an-entity-appointed-by-the-principal-to-represent-and-bind-the-principal) or [third party](https://wiki.powersofattorney.com/terms#meaning-of-third-party), typically involving assets of the [principal](https://wiki.powersofattorney.com/principal#the-principal-is-the-entity-that-makes-the-power-of-attorney) being divested in favor of the [agent](https://wiki.powersofattorney.com/agentswhatisagent#an-agent-is-an-entity-appointed-by-the-principal-to-represent-and-bind-the-principal) or a [third party](https://wiki.powersofattorney.com/terms#meaning-of-third-party). | | **‘[Hot](https://wiki.powersofattorney.com/whatcanagentdo#performance-of-special-and-hot-tasks-is-restricted)’ Tasks** | tasks that have potential to substantially alter an individual’s property, financial, legal and equitable interests, such as creating a trust, ending a joint tenancy or similar. | Set out below in abridged terms in respect of each of the [Six (6) Greater States](https://wiki.powersofattorney.com/introduction#ca-tx-ny-fl-il-and-pa) is a brief summary of restricted ‘[hot](https://wiki.powersofattorney.com/whatcanagentdo#performance-of-special-and-hot-tasks-is-restricted) tasks’ that either cannot be performed without Court approval or must be expressly authorized in a *Power of Attorney* for a [person](https://wiki.powersofattorney.com/terms#meaning-of-person-ie-natural-person).[^18] The ‘state based accounts’ below are not comprehensive, complete summaries by any account and many [tasks](https://wiki.powersofattorney.com/whatcanagentdo#there-are-lots-of-examples-of-commercial-tasks) that do not benefit the [principal](https://wiki.powersofattorney.com/principal#the-principal-is-the-entity-that-makes-the-power-of-attorney) might constitute ‘hot tasks’. The overarching [fiduciary](https://wiki.powersofattorney.com/terms#meaning-of-fiduciary) duty of an [agent](https://wiki.powersofattorney.com/agentswhatisagent#an-agent-is-an-entity-appointed-by-the-principal-to-represent-and-bind-the-principal) may prevent an [agent](https://wiki.powersofattorney.com/agentswhatisagent#an-agent-is-an-entity-appointed-by-the-principal-to-represent-and-bind-the-principal) performing any task that benefits the [agent](https://wiki.powersofattorney.com/agentswhatisagent#an-agent-is-an-entity-appointed-by-the-principal-to-represent-and-bind-the-principal) or a [third party](https://wiki.powersofattorney.com/terms#meaning-of-third-party) which is not expressly authorized in a *Power of Attorney* or is otherwise not consistent with the [agent](https://wiki.powersofattorney.com/agentswhatisagent#an-agent-is-an-entity-appointed-by-the-principal-to-represent-and-bind-the-principal) acting in the best interests of the [principal](https://wiki.powersofattorney.com/principal#the-principal-is-the-entity-that-makes-the-power-of-attorney). ### California An [agent](https://wiki.powersofattorney.com/agentswhatisagent#an-agent-is-an-entity-appointed-by-the-principal-to-represent-and-bind-the-principal) cannot do the following unless expressly authorized in a *Power of Attorney* for a [person](https://wiki.powersofattorney.com/terms#meaning-of-person-ie-natural-person)[^19] ([§4264](https://codes.findlaw.com/ca/probate-code/prob-sect-4264.html)):- - create, modify, revoke, or terminate a trust - fund with the [principal’s](https://wiki.powersofattorney.com/principal#the-principal-is-the-entity-that-makes-the-power-of-attorney) property a trust not created by the [principal](https://wiki.powersofattorney.com/principal#the-principal-is-the-entity-that-makes-the-power-of-attorney) or on behalf of the [principal](https://wiki.powersofattorney.com/principal#the-principal-is-the-entity-that-makes-the-power-of-attorney) - make or revoke a gift of the [principal’s](https://wiki.powersofattorney.com/principal#the-principal-is-the-entity-that-makes-the-power-of-attorney) property in trust - reject, disclaim, release, or consent to a reduction in, or modification of, a share in, or payment from, an estate, trust, or other fund on behalf of the [principal](https://wiki.powersofattorney.com/principal#the-principal-is-the-entity-that-makes-the-power-of-attorney) (without Court approval) - create or change survivorship interests in the [principal’s](https://wiki.powersofattorney.com/principal#the-principal-is-the-entity-that-makes-the-power-of-attorney) property or in property in which the [principal](https://wiki.powersofattorney.com/principal#the-principal-is-the-entity-that-makes-the-power-of-attorney) may have an interest - designate or change the designation of beneficiaries to receive any property, benefit, or contract right on the [principal’s](https://wiki.powersofattorney.com/principal#the-principal-is-the-entity-that-makes-the-power-of-attorney) death - make a loan to the [agent](https://wiki.powersofattorney.com/agentswhatisagent#an-agent-is-an-entity-appointed-by-the-principal-to-represent-and-bind-the-principal) ### Texas In a [durable](https://wiki.powersofattorney.com/typescommonlyusedpersons#a-durable-power-of-attorney-operates-if-the-principal-lacks-or-may-lack-capacity) *Power of Attorney*, an [agent](https://wiki.powersofattorney.com/agentswhatisagent#an-agent-is-an-entity-appointed-by-the-principal-to-represent-and-bind-the-principal) cannot do the following unless expressly authorized in a *Power of Attorney* for a [person](https://wiki.powersofattorney.com/terms#meaning-of-person-ie-natural-person)[^20] ([§751.031(b)](https://codes.findlaw.com/tx/estates-code/est-sect-751-031.html)) :- - create, modify, revoke, or terminate a trust - make a gift (other than in accordance with certain limitations) ([§751.032](https://codes.findlaw.com/tx/estates-code/est-sect-751-032.html)) - create or change beneficial rights of survivorship - create or change a beneficial designation - create an interest in the property of the [principal](https://wiki.powersofattorney.com/principal#the-principal-is-the-entity-that-makes-the-power-of-attorney) in favour of a person who is not an ancestor, spouse or descendant of the [principal](https://wiki.powersofattorney.com/principal#the-principal-is-the-entity-that-makes-the-power-of-attorney), unless expressly authorized ([§751.031](https://codes.findlaw.com/tx/estates-code/est-sect-751-031.html)) ### New York An [agent](https://wiki.powersofattorney.com/agentswhatisagent#an-agent-is-an-entity-appointed-by-the-principal-to-represent-and-bind-the-principal) cannot do the following unless expressly authorized in a *Power of Attorney* for a [person](https://wiki.powersofattorney.com/terms#meaning-of-person-ie-natural-person):[^21]: - add or delete a joint account holder ([§5-1502D](https://codes.findlaw.com/ny/general-obligations-law/gob-sect-5-1502d.html)) - change designation of beneficiaries in respect of a totten trust account ([§5-1502D](https://codes.findlaw.com/ny/general-obligations-law/gob-sect-5-1502d.html)) - change designation of beneficiaries in respect of life insurance: ([§5-1502F](https://codes.findlaw.com/ny/general-obligations-law/gob-sect-5-1502f.html)) - keep property separate ([§5-1505](https://codes.findlaw.com/ny/general-obligations-law/gob-sect-5-1505.html)) ### Florida An [agent](https://wiki.powersofattorney.com/agentswhatisagent#an-agent-is-an-entity-appointed-by-the-principal-to-represent-and-bind-the-principal) cannot do the following unless expressly authorized in a *Power of Attorney* for a [person](https://wiki.powersofattorney.com/terms#meaning-of-person-ie-natural-person)[^22] ([§709.2202](https://codes.findlaw.com/fl/title-xl-real-and-personal-property/fl-st-sect-709-2202.html)):- - create an inter vivos trust - amend, modify, revoke or terminate any trust created by or on behalf of the [principal](https://wiki.powersofattorney.com/principal#the-principal-is-the-entity-that-makes-the-power-of-attorney) - make a gift (other than in accordance with certain limitations) - create or change beneficial rights of survivorship - waive the [principal’s](https://wiki.powersofattorney.com/principal#the-principal-is-the-entity-that-makes-the-power-of-attorney) right to be a beneficiary of a joint and survivor annuity, including a survivor benefit under a retirement plan - disclaim property and powers of appointment - create an interest in the property of the [principal](https://wiki.powersofattorney.com/principal#the-principal-is-the-entity-that-makes-the-power-of-attorney) in favour of a person who is not an ancestor, spouse or descendant of the [principal](https://wiki.powersofattorney.com/principal#the-principal-is-the-entity-that-makes-the-power-of-attorney), unless expressly authorized - mortgage or convey the family home without joining any spouse ([§709.2201](https://codes.findlaw.com/fl/title-xl-real-and-personal-property/fl-st-sect-709-2201.html)) ### Illinois [§2-9](https://codes.findlaw.com/il/chapter-755-estates/il-st-sect-755-45-2-9.html) states: “*An agent may not revoke or amend a trust revocable or amendable by the principal or require the trustee of any trust for the benefit of the principal to pay income or principal to the agent without specific authority and specific reference to the trust in the agency.  The agent shall have access to and the right to copy (but not to hold) the principal’s will, trusts and other personal papers and records to the extent the agent deems relevant for purposes of this Section.  This Section shall not apply to any Totten Trust, Payable on Death Account, or comparable trust account arrangement where the terms of such trust are contained entirely on the financial institution’s signature card insofar as an agent acting under a power of attorney executed in accordance with this Act shall be permitted to withdraw income or principal from such account if the power of attorney grants the agent authority to conduct financial institution transactions on the principal’s behalf and the agent’s authority to access such account is not expressly limited or withheld in the agency.*” In **Illinois**, no other equivalent provisions of the kind seen in **California**, **Texas**, **New York** and **Florida** are included in [legislation](https://wiki.powersofattorney.com/legislation#the-legislation-governs-powers-of-attorney-for-persons), although an [agent](https://wiki.powersofattorney.com/agentswhatisagent#an-agent-is-an-entity-appointed-by-the-principal-to-represent-and-bind-the-principal) remains duty bound to act for the benefit of the [principal](https://wiki.powersofattorney.com/principal#the-principal-is-the-entity-that-makes-the-power-of-attorney). [§3-4](https://codes.findlaw.com/il/chapter-755-estates/il-st-sect-755-45-3-4.html) states in respect of the [government form](https://wiki.powersofattorney.com/governmentforms#government-forms-in-ca-tx-ny-il):- *“the agent will not have power under any of the statutory categories (a) through (o) to make gifts of the principal’s property, to exercise powers to appoint to others or to change any beneficiary whom the principal has designated to take the principal’s interests at death under any will, trust, joint tenancy, beneficiary form or contractual arrangement.”* ### Pennsylvania In **Pennsylvania**, things work somewhat differently. [§5602(a)](https://codes.findlaw.com/pa/title-20-pacsa-decedents-estates-and-fiduciaries/pa-csa-sect-20-5602.html) sets out certain [special](https://wiki.powersofattorney.com/whatcanagentdo#performance-of-special-and-hot-tasks-is-restricted) or [hot](https://wiki.powersofattorney.com/whatcanagentdo#performance-of-special-and-hot-tasks-is-restricted) tasks in more fuller terms than occurs in the other five (5) of the [Six (6) Greater States](https://wiki.powersofattorney.com/introduction#ca-tx-ny-fl-il-and-pa). The wording in [§5602(a)](https://codes.findlaw.com/pa/title-20-pacsa-decedents-estates-and-fiduciaries/pa-csa-sect-20-5602.html) (read with [§5603](https://codes.findlaw.com/pa/title-20-pacsa-decedents-estates-and-fiduciaries/pa-csa-sect-20-5603.html)) may be a useful starting point for anyone wanting to examine or better define [special](https://wiki.powersofattorney.com/whatcanagentdo#performance-of-special-and-hot-tasks-is-restricted) or [hot](https://wiki.powersofattorney.com/whatcanagentdo#performance-of-special-and-hot-tasks-is-restricted) tasks in a *Power of Attorney*. The [special](https://wiki.powersofattorney.com/whatcanagentdo#performance-of-special-and-hot-tasks-is-restricted) or [hot](https://wiki.powersofattorney.com/whatcanagentdo#performance-of-special-and-hot-tasks-is-restricted) tasks in [§5602(a)](https://codes.findlaw.com/pa/title-20-pacsa-decedents-estates-and-fiduciaries/pa-csa-sect-20-5602.html) include:- - creating a trust for the benefit of the [principal](https://wiki.powersofattorney.com/principal#the-principal-is-the-entity-that-makes-the-power-of-attorney) - making additions to an existing trust for the benefit of the [principal](https://wiki.powersofattorney.com/principal#the-principal-is-the-entity-that-makes-the-power-of-attorney) - claiming an elective share of the estate of a spouse - renouncing fiduciary positions - withdrawing and receiving the income or corpus of a trust ## In Some States An Agent Has ‘Emergency’ Authority In **California** and **Illinois**:- - [legislation](https://wiki.powersofattorney.com/legislation#the-legislation-governs-powers-of-attorney-for-persons) governing *Powers of Attorney* for a [person](https://wiki.powersofattorney.com/terms#meaning-of-person-ie-natural-person)[^23] permits an [agent](https://wiki.powersofattorney.com/agentswhatisagent#an-agent-is-an-entity-appointed-by-the-principal-to-represent-and-bind-the-principal) to act outside the scope of their written authority in the event of an emergency - the existence of any positive obligation to act is expressly excluded ([§4202](https://codes.findlaw.com/ca/probate-code/prob-sect-4202.html); [§2-10.5](https://codes.findlaw.com/il/chapter-755-estates/il-st-sect-755-45-2-10-5.html)) - a [principal](https://wiki.powersofattorney.com/principal#the-principal-is-the-entity-that-makes-the-power-of-attorney) may find comfort in dealing with the imposition of a [positive duty to act](https://wiki.powersofattorney.com/agentoblig#an-agent-may-not-have-a-positive-duty-to-act) upon [agent](https://wiki.powersofattorney.com/agentswhatisagent#an-agent-is-an-entity-appointed-by-the-principal-to-represent-and-bind-the-principal), for example in the context of emergencies to ensure their arrangements are clear In **New York**, an [agent](https://wiki.powersofattorney.com/agentswhatisagent#an-agent-is-an-entity-appointed-by-the-principal-to-represent-and-bind-the-principal) may act outside the scope of their written authority in “*if prompt action is required to accomplish a purpose of the power of attorney and to avoid irreparable injury to the principal’s interest and a co-agent is unavailable because of absence, illness or other temporary incapacity*” ([§5-1508](https://codes.findlaw.com/ny/general-obligations-law/gob-sect-5-1508.html)). ## Overlapping Powers Are Regulated By Legislation In Some Of The Six (6) Greater States In **Texas**, **Florida** and **Pennsylvania**, there is [legislation](https://wiki.powersofattorney.com/legislation#the-legislation-governs-powers-of-attorney-for-persons) dealing with [tasks](https://wiki.powersofattorney.com/whatcanagentdo#there-are-lots-of-examples-of-commercial-tasks) that [overlap](https://wiki.powersofattorney.com/whatcanagentdo#overlapping-powers-are-regulated-by-legislation-in-some-of-the-six-6-greater-states) (*or terms otherwise inconsistent in defining the [tasks](https://wiki.powersofattorney.com/whatcanagentdo#there-are-lots-of-examples-of-commercial-tasks) an [agent](https://wiki.powersofattorney.com/agentswhatisagent#an-agent-is-an-entity-appointed-by-the-principal-to-represent-and-bind-the-principal) may perform*) in a *Power of Attorney* for a [person](https://wiki.powersofattorney.com/terms#meaning-of-person-ie-natural-person)[^24]. | | | | --- | --- | | **Texas** | [§751.031](https://codes.findlaw.com/tx/estates-code/est-sect-751-031.html) provides that “*…if the subjects over which authority is granted in a durable power of attorney are similar or overlap, the broadest authority controls*…” | | **Florida** | [§709.2201](https://codes.findlaw.com/fl/title-xl-real-and-personal-property/fl-st-sect-709-2201.html) provides that “*…if the subjects over which authority is granted in a durable power of attorney are similar or overlap, the broadest authority controls*…” | | **Pennsylvania** | [§5601.4(e)](https://codes.findlaw.com/pa/title-20-pacsa-decedents-estates-and-fiduciaries/pa-csa-sect-20-5601-4.html) states “*…similar or overlapping subjects.–Subject to subsections (a), (b), (d) and (d.1), if the subjects over which authority is granted in a power of attorney are similar or overlap, the broadest authority controls*…” | Overlapping [tasks](https://wiki.powersofattorney.com/whatcanagentdo#there-are-lots-of-examples-of-commercial-tasks) are not similarly addressed the [legislation](https://wiki.powersofattorney.com/legislation#the-legislation-governs-powers-of-attorney-for-persons) of **California**, **New York** and **Illinois**. Inclusion of terms dealing with overlapping [tasks](https://wiki.powersofattorney.com/whatcanagentdo#there-are-lots-of-examples-of-commercial-tasks) in a *Power of Attorney* may be warranted:- - in **California**, **New York** and **Illinois** in a *Power of Attorney* for a [person](https://wiki.powersofattorney.com/terms#meaning-of-person-ie-natural-person)[^25] - in a *Power of Attorney* for a [commercial entity](https://wiki.powersofattorney.com/terms#meaning-of-commercial-entity) - in **Texas**, **Florida** or **Pennsylvania**, in a *Power of Attorney* for a [person](https://wiki.powersofattorney.com/terms#meaning-of-person-ie-natural-person) that is [excluded](https://wiki.powersofattorney.com/legislation#exclusions) from the ambit of the [legislation](https://wiki.powersofattorney.com/legislation#the-legislation-governs-powers-of-attorney-for-persons)[^26] ### Example Imagine a *Power of Attorney* authorizing a sole [agent](https://wiki.powersofattorney.com/agentswhatisagent#an-agent-is-an-entity-appointed-by-the-principal-to-represent-and-bind-the-principal) to perform these two [tasks](https://wiki.powersofattorney.com/whatcanagentdo#there-are-lots-of-examples-of-commercial-tasks):- - *any [task](https://wiki.powersofattorney.com/whatcanagentdo#there-are-lots-of-examples-of-commercial-tasks) involving the selling, purchasing, leasing or subdivision of any real property* - *any real property transaction with respect to the property known as 18 Pepper Drive, Brentwood* On one view, the more limited authority appearing second above qualifies (i.e. limits) the first authority, or perhaps the first authority simply includes the second listed authority, the position is unclear. ## Overlapping *Powers of Attorney* Are Regulated By Legislation In California As within the [Six (6) Greater States](https://wiki.powersofattorney.com/introduction#ca-tx-ny-fl-il-and-pa), only **California** addresses in [legislation](https://wiki.powersofattorney.com/legislation#the-legislation-governs-powers-of-attorney-for-persons) governing *Power of Attorney* for a [person](https://wiki.powersofattorney.com/terms#meaning-of-person-ie-natural-person)[^27] the issue of overlapping *Powers of Attorney* (*as distinct from overlapping [tasks](https://wiki.powersofattorney.com/whatcanagentdo#there-are-lots-of-examples-of-commercial-tasks) within the same *Power of Attorney*, discussed above*). In **California**, [§4130](https://codes.findlaw.com/ca/probate-code/prob-sect-4130.html) provides that in respect of *Powers of Attorney* for a [person](https://wiki.powersofattorney.com/terms#meaning-of-person-ie-natural-person),[^28] ‘the last in time trumps any earlier, inconsistent *Power of Attorney*’. This raises interesting issues in **California**, for example:- - where only one of multiple *Powers of Attorney* are [governed](https://wiki.powersofattorney.com/legislation#exclusions) by the [legislation](https://wiki.powersofattorney.com/legislation#the-legislation-governs-powers-of-attorney-for-persons) what is the effect of executing a subsequent *Power of Attorney*? - would the [creation](https://wiki.powersofattorney.com/creation/create#terms-like-create-or-make-a-power-of-attorney-have-various-meanings) of a subsequent *Power of Attorney* for a [person](https://wiki.powersofattorney.com/terms#meaning-of-person-ie-natural-person) for purposes [excluded](https://wiki.powersofattorney.com/legislation#exclusions) from the ambit of the [legislation](https://wiki.powersofattorney.com/legislation#the-legislation-governs-powers-of-attorney-for-persons) trigger any effect upon any earlier *Powers of Attorney* under [§4130](https://codes.findlaw.com/ca/probate-code/prob-sect-4130.html)? ## A Principal May Record Preferences In Relation To Performance Of A Task A [better](https://wiki.powersofattorney.com/idealcontent#features-of-powersofattorneycom) *Power of Attorney* might include ‘[preferences](https://wiki.powersofattorney.com/whatcanagentdo#a-principal-may-record-preferences-in-relation-to-performance-of-a-task)’, that is, terms that:- - are not to have any particular ‘binding force’ upon an [agent](https://wiki.powersofattorney.com/agentswhatisagent#an-agent-is-an-entity-appointed-by-the-principal-to-represent-and-bind-the-principal), being matters less than a [direction](https://wiki.powersofattorney.com/directionwhatis#a-direction-regulates-matters-under-a-power-of-attorney) or [limitation](https://wiki.powersofattorney.com/limitwhatis#a-limitation-qualifies-another-provision-or-principle) - remain matters the [principal](https://wiki.powersofattorney.com/principal#the-principal-is-the-entity-that-makes-the-power-of-attorney) would prefer be taken into account by [agents](https://wiki.powersofattorney.com/agentswhatisagent#an-agent-is-an-entity-appointed-by-the-principal-to-represent-and-bind-the-principal) when performing [tasks](https://wiki.powersofattorney.com/whatcanagentdo#there-are-lots-of-examples-of-commercial-tasks) Accompanied by appropriate wording, [preferences](https://wiki.powersofattorney.com/whatcanagentdo#a-principal-may-record-preferences-in-relation-to-performance-of-a-task) might include for example:- - in respect of banking transactions, the [principal’s](https://wiki.powersofattorney.com/principal#the-principal-is-the-entity-that-makes-the-power-of-attorney) preferred bank or banks - in respect of a share portfolio, a preference on the part of the [principal](https://wiki.powersofattorney.com/principal#the-principal-is-the-entity-that-makes-the-power-of-attorney) that at least 33% of shares in the portfolio be held in a certain industry - in respect of real property transactions, the [principal’s](https://wiki.powersofattorney.com/principal#the-principal-is-the-entity-that-makes-the-power-of-attorney) preferred locations in which any new property be acquired - in respect of taxation transactions, the [principal’s](https://wiki.powersofattorney.com/principal#the-principal-is-the-entity-that-makes-the-power-of-attorney) preferred advisor for certain kinds of problems ## There Is No Substitute For Reading A *Power of Attorney* To Identify Tasks An Agent May Perform Whether an [agent](https://wiki.powersofattorney.com/agentswhatisagent#an-agent-is-an-entity-appointed-by-the-principal-to-represent-and-bind-the-principal) may perform a given [task](https://wiki.powersofattorney.com/whatcanagentdo#there-are-lots-of-examples-of-commercial-tasks) at a certain time turns upon the precise terms of the *Power of Attorney*. An [agent](https://wiki.powersofattorney.com/agentswhatisagent#an-agent-is-an-entity-appointed-by-the-principal-to-represent-and-bind-the-principal) might be authorized to perform:- - any [task](https://wiki.powersofattorney.com/whatcanagentdo#there-are-lots-of-examples-of-commercial-tasks) at any time - only one [task](https://wiki.powersofattorney.com/whatcanagentdo#there-are-lots-of-examples-of-commercial-tasks), in one week in July - three [tasks](https://wiki.powersofattorney.com/whatcanagentdo#there-are-lots-of-examples-of-commercial-tasks) at any time the [principal](https://wiki.powersofattorney.com/principal#the-principal-is-the-entity-that-makes-the-power-of-attorney) lacks [capacity](https://wiki.powersofattorney.com/capacitytexas#capacity-refers-to-ability-to-manage-ones-own-affairs) - any [task](https://wiki.powersofattorney.com/whatcanagentdo#there-are-lots-of-examples-of-commercial-tasks), subject to obtaining the written consent of a particular person to the performance of that [task](https://wiki.powersofattorney.com/whatcanagentdo#there-are-lots-of-examples-of-commercial-tasks) - certain [tasks](https://wiki.powersofattorney.com/whatcanagentdo#there-are-lots-of-examples-of-commercial-tasks), in the event that any of a series of particular events take place The possibilities are quite literally, endless. The detail can only be revealed by a close reading of the entire terms of a *Power of Attorney*. ## California & Florida - Non-Commercial Tasks Within the [Six (6) Greater States](https://wiki.powersofattorney.com/introduction#ca-tx-ny-fl-il-and-pa), **California** and **Florida** include scope for an [agent](https://wiki.powersofattorney.com/agentswhatisagent#an-agent-is-an-entity-appointed-by-the-principal-to-represent-and-bind-the-principal) under a *Power of Attorney* for a [person](https://wiki.powersofattorney.com/terms#meaning-of-person-ie-natural-person)[^15] that is otherwise for [commercial](https://wiki.powersofattorney.com/terms#meaning-of-commercial) purposes to perform certain [non-commercial](https://wiki.powersofattorney.com/terms#meaning-of-non-commercial) tasks:- - **California** recognizes the right of an [agent](https://wiki.powersofattorney.com/agentswhatisagent#an-agent-is-an-entity-appointed-by-the-principal-to-represent-and-bind-the-principal) to perform “personal” tasks (§4123) - **Florida** speaks of “health” care tasks ([§709.2201](https://codes.findlaw.com/fl/title-xl-real-and-personal-property/fl-st-sect-709-2201.html)) In **New York**, **Florida**, **Texas** or **Pennsylvania**, there are no similar provisions In **Illinois**, [legislation](https://wiki.powersofattorney.com/legislation#the-legislation-governs-powers-of-attorney-for-persons) is significantly intertwined with [legislation](https://wiki.powersofattorney.com/legislation#the-legislation-governs-powers-of-attorney-for-persons) applicable to *Powers of Attorney* for health care purposes, although the use of two separate documents is contemplated.[^16] ### Personal Care Tasks INSERT FULL TEXT OF PERSONAL CARE TASKS CALI [https://codes.findlaw.com/ca/probate-code/prob-sect-4123.html](https://codes.findlaw.com/ca/probate-code/prob-sect-4123.html) © With regard to personal care, a power of attorney may grant authority to make decisions relating to the personal care of the principal, including, but not limited to, determining where the principal will live, providing meals, hiring household employees, providing transportation, handling mail, and arranging recreation and entertainment. ## Care Is Required When Defining Authorized Tasks Care should be taken when constructing a *Power of Attorney* to ensure that consideration is given to [termination](https://wiki.powersofattorney.com/termmng#termination-refers-to-a-power-of-attorney-coming-to-an-end) as a consequence of [fulfilment of the purpose](https://wiki.powersofattorney.com/termmng#a-power-of-attorney-terminates-upon-fulfilment-of-its-purpose) of the *Power of Attorney.* For example:- - there is potential for problems where [tasks](https://wiki.powersofattorney.com/whatcanagentdo#there-are-lots-of-examples-of-commercial-tasks) identified for performance by an agent [overlap](https://wiki.powersofattorney.com/whatcanagentdo#overlapping-powers-are-regulated-by-legislation-in-some-of-the-six-6-greater-states). - if words are included in a *Power of Attorney* that have unclear meaning, an [agent](https://wiki.powersofattorney.com/agentswhatisagent#an-agent-is-an-entity-appointed-by-the-principal-to-represent-and-bind-the-principal) may be left in difficulty Lack of clarity may leave an [agent](https://wiki.powersofattorney.com/agentswhatisagent#an-agent-is-an-entity-appointed-by-the-principal-to-represent-and-bind-the-principal) without option but to approach a Court, for fear of breaching their [fiduciary](https://wiki.powersofattorney.com/terms#meaning-of-fiduciary) duty, if for example they were to incorrectly interpret words in the *Power of Attorney*. ## Commercial Entities Invariably Need To Recite A Statutory Task in Full [Legislation](https://wiki.powersofattorney.com/legislation#the-legislation-governs-powers-of-attorney-for-persons) in all of the [Six (6) Greater States](https://wiki.powersofattorney.com/introduction#ca-tx-ny-fl-il-and-pa) operates with respect to [persons](https://wiki.powersofattorney.com/terms#meaning-of-person-ie-natural-person)[^29] not [commercial entities](https://wiki.powersofattorney.com/terms#meaning-of-commercial-entity). It follows that in respect of a *Power of Attorney* under which the [principal](https://wiki.powersofattorney.com/principal#the-principal-is-the-entity-that-makes-the-power-of-attorney) is a [commercial entity](https://wiki.powersofattorney.com/terms#meaning-of-commercial-entity), incorporating [‘statutory’ tasks](https://wiki.powersofattorney.com/whatcanagentdo#statutory-tasks-are-contained-in-the-legislation-of-many-states) by [mere reference](https://wiki.powersofattorney.com/whatcanagentdo#in-some-circumstances-incorporation-may-be-achieved-by-mere-reference) is not viable. in respect of a *Power of Attorney* for a [commercial entity](https://wiki.powersofattorney.com/terms#meaning-of-commercial-entity), there is no difficulty reciting a [‘statutory’ task](https://wiki.powersofattorney.com/whatcanagentdo#statutory-tasks-are-contained-in-the-legislation-of-many-states) cited in [legislation](https://wiki.powersofattorney.com/legislation#the-legislation-governs-powers-of-attorney-for-persons) in full, perhaps with suitable edits. ## **Comparing The US to The World Is Interesting** The UK, Canada and Australia take a different approach to the USA, in the context of identifying in a *Power of Attorney* the [tasks](https://wiki.powersofattorney.com/whatcanagentdo#there-are-lots-of-examples-of-commercial-tasks) that an [agent](https://wiki.powersofattorney.com/agentswhatisagent#an-agent-is-an-entity-appointed-by-the-principal-to-represent-and-bind-the-principal) may perform. In the UK, Canada and Australia (*albeit at least in major states of Canada and Australia*):- - there are no schedules of [‘statutory’ tasks](https://wiki.powersofattorney.com/whatcanagentdo#statutory-tasks-are-contained-in-the-legislation-of-many-states) of the kind seen in America - legislation focuses upon the concept of an [agent](https://wiki.powersofattorney.com/agentswhatisagent#an-agent-is-an-entity-appointed-by-the-principal-to-represent-and-bind-the-principal) being authorized to do ‘*anything that the principal might lawfully do by an agent’* (*i.e. no reference to any particular [task](https://wiki.powersofattorney.com/whatcanagentdo#there-are-lots-of-examples-of-commercial-tasks)*) There is much to be said in favour of the American approach. The approach in the UK, Canada and Australia is disarming and perplexing. It says everything, yet nothing, meaning that if the [principal](https://wiki.powersofattorney.com/principal#the-principal-is-the-entity-that-makes-the-power-of-attorney) wants to define what an [agent](https://wiki.powersofattorney.com/agentswhatisagent#an-agent-is-an-entity-appointed-by-the-principal-to-represent-and-bind-the-principal) may do, the [legislation](https://wiki.powersofattorney.com/legislation#the-legislation-governs-powers-of-attorney-for-persons) is of no help at all and the [principal](https://wiki.powersofattorney.com/principal#the-principal-is-the-entity-that-makes-the-power-of-attorney) must go looking for words to define the [tasks](https://wiki.powersofattorney.com/whatcanagentdo#there-are-lots-of-examples-of-commercial-tasks) they want performed. Schedules of [statutory tasks](https://wiki.powersofattorney.com/whatcanagentdo#statutory-tasks-are-contained-in-the-legislation-of-many-states), albeit worded slightly differently between different states, tend to:- - provide a reference point when trying to define what an [agent](https://wiki.powersofattorney.com/agentswhatisagent#an-agent-is-an-entity-appointed-by-the-principal-to-represent-and-bind-the-principal) might be authorized to do - assist a [principal](https://wiki.powersofattorney.com/principal#the-principal-is-the-entity-that-makes-the-power-of-attorney) to more conveniently define [tasks](https://wiki.powersofattorney.com/whatcanagentdo#there-are-lots-of-examples-of-commercial-tasks) - assist in the design of *Powers of Attorney* in ways that [legislation](https://wiki.powersofattorney.com/legislation#the-legislation-governs-powers-of-attorney-for-persons) that only speaks of ‘*anything that the principal might lawfully do by an agent’* do not serve ## Six (6) Greater States - Application/Exclusion of Legislation Set out below are the various ‘carve-outs’ with respect to operation of the [legislation](https://wiki.powersofattorney.com/legislation#the-legislation-governs-powers-of-attorney-for-persons). The [creation](https://wiki.powersofattorney.com/creation/create#terms-like-create-or-make-a-power-of-attorney-have-various-meanings) of a *Power of Attorney* that includes for both included and excluded purpose should be avoided, given the confusion and difficulties it would present. Where it be proposed that an [agent](https://wiki.powersofattorney.com/agentswhatisagent) perform included and excluded [tasks](https://wiki.powersofattorney.com/whatcanagentdo#there-are-lots-of-examples-of-commercial-tasks) separate *Powers of Attorney* might be used. Care would be needed, to consider precisely how the arrangement then works, so as to ensure that the terms of each of the *Powers of Attorney* accord with the preferences of the [principal](https://wiki.powersofattorney.com/principal#the-principal-is-the-entity-that-makes-the-power-of-attorney), when they work together. ### California #### Commercial Purposes A [person](https://wiki.powersofattorney.com/terms#meaning-of-person-ie-natural-person) may [create](https://wiki.powersofattorney.com/creation/create#terms-like-create-or-make-a-power-of-attorney-have-various-meanings) a [durable](https://wiki.powersofattorney.com/typescommonlyusedpersons#a-durable-power-of-attorney-operates-if-the-principal-lacks-or-may-lack-capacity) or [non-durable](https://wiki.powersofattorney.com/typescommonlyusedpersons#non-durable-powers-of-attorney) *Power of Attorney* for [commercial](https://wiki.powersofattorney.com/typescommonlyusedpersons#commercial-powers-of-attorney-for-commercial-purposes) purposes ([§4022](https://codes.findlaw.com/ca/probate-code/prob-sect-4022.html) & [§4120](https://codes.findlaw.com/ca/probate-code/prob-sect-4120.html)). [§4050](https://codes.findlaw.com/ca/probate-code/prob-sect-4050.html) provides that [Division 4.5 of the *California Probate Code*](https://law.justia.com/codes/california/2016/code-prob/division-4.5/) applies to:- - [durable](https://wiki.powersofattorney.com/typescommonlyusedpersons#a-durable-power-of-attorney-operates-if-the-principal-lacks-or-may-lack-capacity) *Powers of Attorney* - [statutory](https://wiki.powersofattorney.com/typescommonlyusedpersons#statutory-powers-of-attorney-a-government-form) *Powers of Attorney* - any other *Power of Attorney* that incorporates or refers to [Division 4.5 of the *California Probate Code*](https://law.justia.com/codes/california/2016/code-prob/division-4.5/) or the provisions of [Division 4.5 of the *California Probate Code*](https://law.justia.com/codes/california/2016/code-prob/division-4.5/) [§4050](https://codes.findlaw.com/ca/probate-code/prob-sect-4050.html) provides that [Division 4.5 of the California Probate Code](https://law.justia.com/codes/california/2016/code-prob/division-4.5/) does not apply to:- - *Powers of Attorney for Health Care* governed by [Division 4.7](https://law.justia.com/codes/california/2016/code-prob/division-4.7/) - a *Power of Attorney* coupled with an interest in the subject of the power (such as most [irrevocable](https://wiki.powersofattorney.com/typescommonlyusedpersons#irrevocable-powers-of-attorney) *Powers of Attorney*) - *Powers of Attorney* in the context of [reciprocal or interinsurance exchanges](https://wiki.powersofattorney.com/terms#meaning-of-reciprocal-or-interinsurance-exchanges) - a proxy to exercise voting rights (perhaps with respect to management of an entity if this limitation is read in line with the approach taken in other states which may or or may not be appropriate) Certain [indicia](https://wiki.powersofattorney.com/whatisapoa#able-to-be-created-by-a-person-or-commercial-entity) suggests that *Powers of Attorney* may be able to be [created](https://wiki.powersofattorney.com/creation/create#terms-like-create-or-make-a-power-of-attorney-have-various-meanings) by a [commercial entity](https://wiki.powersofattorney.com/terms#meaning-of-commercial-entity). In California, [§4050](https://codes.findlaw.com/ca/probate-code/prob-sect-4123.html) states:- *This division applies to the following*: *(1) Durable powers of attorney, other than powers of attorney for health care governed by Division 4.7 (commencing with Section 4600 ).* *(2) Statutory form powers of attorney under Part 3 (commencing with Section 4400 ).* *(3) Any other power of attorney that incorporates or refers to this division or the provisions of this division.* Failure to incorporate or refer to Division 4.5 in a [non-statutory non-durable](https://wiki.powersofattorney.com/typescommonlyusedpersons#non-statutory-non-durable-powers-of-attorney) *Power of Attorney* might produce a [non-statutory non-durable](https://wiki.powersofattorney.com/typescommonlyusedpersons#non-statutory-non-durable-powers-of-attorney) *Power of Attorney* that is not subject to [Division 4.5](https://law.justia.com/codes/california/2016/code-prob/division-4.5/). #### Other Legislation Other [legislation](https://wiki.powersofattorney.com/legislation#the-legislation-governs-powers-of-attorney-for-persons) may also be applicable (as recognized in [§4051](https://codes.findlaw.com/ca/probate-code/prob-sect-4051.html)), such as:- - [§2019](https://codes.findlaw.com/ca/civil-code/civ-sect-2019.html), [§2020](https://codes.findlaw.com/ca/civil-code/civ-sect-2020.html), [§2021](https://codes.findlaw.com/ca/civil-code/civ-sect-2021.html) and [§2022](https://codes.findlaw.com/ca/civil-code/civ-sect-2022.html): requiring an [agent](https://wiki.powersofattorney.com/agentswhatisagent) to keep the [principal](https://wiki.powersofattorney.com/principal) informed of their actions, collect negotiable instruments (i.e. cheques) promptly and not exceed the [agent’s](https://wiki.powersofattorney.com/agentswhatisagent) authority ([§2019](https://codes.findlaw.com/ca/civil-code/civ-sect-2019.html), [§2020](https://codes.findlaw.com/ca/civil-code/civ-sect-2020.html) and [§2021](https://codes.findlaw.com/ca/civil-code/civ-sect-2021.html)) and specifically excludes a [sub-agent](https://wiki.powersofattorney.com/subagents#original-or-successor-agent-may-appoint-sub-agent) of an [agent](https://wiki.powersofattorney.com/agentswhatisagent) from liability to the [principal](https://wiki.powersofattorney.com/principal) ([§2022](https://codes.findlaw.com/ca/civil-code/civ-sect-2022.html)) - [§2295](https://codes.findlaw.com/ca/civil-code/civ-sect-2295.html), [§2296](https://codes.findlaw.com/ca/civil-code/civ-sect-2296.html) and [§2297](https://codes.findlaw.com/ca/civil-code/civ-sect-2297.html)*:* dealing with what constitutes an [agent](https://wiki.powersofattorney.com/agentswhatisagent), who may be an [agent](https://wiki.powersofattorney.com/agentswhatisagent) and distinguishing certain types of agents having regard to the scope of their authority. ### Texas #### Commercial Purposes A [non-durable](https://wiki.powersofattorney.com/typescommonlyusedpersons#non-durable-powers-of-attorney) *Power of Attorney* for [commercial](https://wiki.powersofattorney.com/typescommonlyusedpersons#commercial-powers-of-attorney-for-commercial-purposes) purposes is not governed by [legislation](https://wiki.powersofattorney.com/legislation#the-legislation-governs-powers-of-attorney-for-persons). [§751.0015](https://codes.findlaw.com/tx/estates-code/est-sect-751-0015.html) states that [*Subtitle P of Title 2 of the Texas Estates Code*](https://law.justia.com/codes/texas/2017/estates-code/title-2/subtitle-p/) applies to all [durable](https://wiki.powersofattorney.com/typescommonlyusedpersons#a-durable-power-of-attorney-operates-if-the-principal-lacks-or-may-lack-capacity) *Powers of Attorney* except:- - a *Power of Attorney* coupled with an interest in the subject of the power (such as most [irrevocable](https://wiki.powersofattorney.com/typescommonlyusedpersons#irrevocable-powers-of-attorney) *Powers of Attorney*) - a *Medical Power of Attorney* - a proxy or other delegation of voting rights with respect to management of an entity - a *Power of Attorney* contained in a form used by a government agency In **Texas** there is no [legislation](https://wiki.powersofattorney.com/legislation#the-legislation-governs-powers-of-attorney-for-persons) governing [non-durable](https://wiki.powersofattorney.com/typescommonlyusedpersons#non-durable-powers-of-attorney) *Power of Attorney* and so:- - [non-durable](https://wiki.powersofattorney.com/typescommonlyusedpersons#non-durable-powers-of-attorney) *Power of Attorney* cannot be said to be the subject of any [legislation](https://wiki.powersofattorney.com/legislation#the-legislation-governs-powers-of-attorney-for-persons); although - it is fair to say that some principles captured in the [legislation](https://wiki.powersofattorney.com/legislation#the-legislation-governs-powers-of-attorney-for-persons) applicable to [durable](https://wiki.powersofattorney.com/typescommonlyusedpersons#a-durable-power-of-attorney-operates-if-the-principal-lacks-or-may-lack-capacity) *Powers of Attorney* apply to [non-durable](https://wiki.powersofattorney.com/typescommonlyusedpersons#non-durable-powers-of-attorney) *Power of Attorney*, such as for example, the notion that [the act of an agent is binding upon the principal](https://wiki.powersofattorney.com/terms#meaning-of-legally-bind) which is codified in [§751.051](https://codes.findlaw.com/tx/estates-code/est-sect-751-051.html) and could not be disputed as forming part of the [common law](https://wiki.powersofattorney.com/terms#meaning-of-common-law) applicable to [non-durable](https://wiki.powersofattorney.com/typescommonlyusedpersons#non-durable-powers-of-attorney) *Power of Attorney.* Certain [indicia](https://wiki.powersofattorney.com/whatisapoa#able-to-be-created-by-a-person-or-commercial-entity) suggests that *Powers of Attorney* may be able to be [created](https://wiki.powersofattorney.com/creation/create#terms-like-create-or-make-a-power-of-attorney-have-various-meanings) by a [commercial entity](https://wiki.powersofattorney.com/terms#meaning-of-commercial-entity). ### New York #### C**ommercial** Purposes [§5-1501](https://www.nysenate.gov/legislation/laws/GOB/5-1501) states that the [legislation](https://wiki.powersofattorney.com/legislation#the-legislation-governs-powers-of-attorney-for-persons) applies to any *Power of Attorney* except *Powers of Attorney* excluded from the ambit of the [legislation](https://wiki.powersofattorney.com/legislation#the-legislation-governs-powers-of-attorney-for-persons) by [§5-1501C](https://www.nysenate.gov/legislation/laws/GOB/5-1501C). [§5-1501C](https://www.nysenate.gov/legislation/laws/GOB/5-1501C) excludes from the ambit of the [legislation](https://wiki.powersofattorney.com/legislation#the-legislation-governs-powers-of-attorney-for-persons) any *Power of Attorney* “*given primarily for a business or commercial purpose*” in respect of which insight is contained in [§5-1501C](https://www.nysenate.gov/legislation/laws/GOB/5-1501C) which cites examples including: a power coupled with an interest in the subject of the power, a power to benefit a creditor, a power to transfer or dispose of an asset, a proxy to exercise voting rights in respect of management of an entity, a power authorizing a third party to file a document with a government agency a power for accepting service of process, selling real property and similar. The exclusion cited above with respect to *Powers of Attorney* that are “*given primarily for a business or commercial purpose*” is a somewhat broad exclusion, of a kind also seen in **Florida** in respect of “*Powers of Attorney created other than by an individual*”, both being broad exclusions of a kind not repeated in [legislation](https://wiki.powersofattorney.com/legislation#the-legislation-governs-powers-of-attorney-for-persons) in states like **Texas**, **California**, **Illinois** or **Pennsylvania**. Certain [indicia](https://wiki.powersofattorney.com/whatisapoa#able-to-be-created-by-a-person-or-commercial-entity) suggests that *Powers of Attorney* may be able to be [created](https://wiki.powersofattorney.com/creation/create#terms-like-create-or-make-a-power-of-attorney-have-various-meanings) by a [commercial entity](https://wiki.powersofattorney.com/terms#meaning-of-commercial-entity) which also may fall within the terms of the exception referred to above. ### Florida #### Commercial Purposes [Legislation](https://wiki.powersofattorney.com/legislation#the-legislation-governs-powers-of-attorney-for-persons) governs [durable](https://wiki.powersofattorney.com/typescommonlyusedpersons#a-durable-power-of-attorney-operates-if-the-principal-lacks-or-may-lack-capacity) and [non-durable](https://wiki.powersofattorney.com/typescommonlyusedpersons#non-durable-powers-of-attorney) *Powers of Attorney* [created](https://wiki.powersofattorney.com/creation/create#terms-like-create-or-make-a-power-of-attorney-have-various-meanings) by a person for [commercial](https://wiki.powersofattorney.com/typescommonlyusedpersons#commercial-powers-of-attorney-for-commercial-purposes) purposes ([§709.2102](https://codes.findlaw.com/fl/title-xl-real-and-personal-property/fl-st-sect-709-2102.html) & [§709.2103](https://codes.findlaw.com/fl/title-xl-real-and-personal-property/fl-st-sect-709-2103.html)). [§709.2103(4)](https://codes.findlaw.com/fl/title-xl-real-and-personal-property/fl-st-sect-709-2103.html) expressly excludes from the ambit of the [legislation](https://wiki.powersofattorney.com/legislation#the-legislation-governs-powers-of-attorney-for-persons) the following commonly excluded *Powers of Attorney*: - a proxy or other delegation of voting rights with respect to management of an entity - a *Power of Attorney* coupled with an interest in the subject of the power - a *Power of Attorney* contained in a form used by a government agency [§709.2103(4)](https://codes.findlaw.com/fl/title-xl-real-and-personal-property/fl-st-sect-709-2103.html) contains some less common exclusions, in respect of powers to facilitate transfer of a specific stocks or bonds, powers authorizing a financial institution to act as an agent in executing trades or transfers of cash or securities and delegation of powers by a trustee under [§736.0807](https://codes.findlaw.com/fl/title-xlii-estates-and-trusts/fl-st-sect-736-0807.html). In addition however, [§709.2103(4)](https://codes.findlaw.com/fl/title-xl-real-and-personal-property/fl-st-sect-709-2103.html) also expressly excludes “*Powers of Attorney created other than by an individual*” which is a broad and unusual exclusion. The broad exclusion in respect of “*Powers of Attorney created other than by an individual*” renders **Florida** perhaps the most affirmative state in terms of recognizing the right of a [commercial entity](https://wiki.powersofattorney.com/terms#meaning-of-commercial-entity) to [create](https://wiki.powersofattorney.com/creation/create#terms-like-create-or-make-a-power-of-attorney-have-various-meanings) a *Power of Attorney,* given other states like **New York**, **Texas**, **California**, **Illinois** and **Pennsylvania** makes no clear mention of *Powers of Attorney* [created](https://wiki.powersofattorney.com/creation/create#terms-like-create-or-make-a-power-of-attorney-have-various-meanings) by [commercial entities](https://wiki.powersofattorney.com/terms#meaning-of-commercial-entity) in the [legislation](https://wiki.powersofattorney.com/legislation#the-legislation-governs-powers-of-attorney-for-persons). ### Illinois #### Commercial Purposes [Legislation](https://wiki.powersofattorney.com/legislation#the-legislation-governs-powers-of-attorney-for-persons) in **Illinois** governs [durable](https://wiki.powersofattorney.com/typescommonlyusedpersons#a-durable-power-of-attorney-operates-if-the-principal-lacks-or-may-lack-capacity) and [non-durable](https://wiki.powersofattorney.com/typescommonlyusedpersons#non-durable-powers-of-attorney) *Powers of Attorney* [created](https://wiki.powersofattorney.com/creation/create#terms-like-create-or-make-a-power-of-attorney-have-various-meanings) by persons. [§2-4](https://codes.findlaw.com/il/chapter-755-estates/il-st-sect-755-45-2-4.html) states that the [legislation](https://wiki.powersofattorney.com/legislation#the-legislation-governs-powers-of-attorney-for-persons):- - governs “*every agency, whenever and wherever executed” and to apply to “all agencies exercised in Illinois and to all other agencies if the principal is in Illinois at the time the agency is signed or at the time of exercise or if the agency indicates that Illinois law is to apply*” - applies to “every agency” be governed by Article II, Sections 4-1 to 4-9 and Section 4-11 of Article IV" - does not apply to certain *Powers of Attorney* for the benefit of certain financial institutions being powers of kinds excluded more generally in other states, such as powers dealing with proxies for voting rights, powers to transfer specific assets and similar. Certain [indicia](https://wiki.powersofattorney.com/whatisapoa#able-to-be-created-by-a-person-or-commercial-entity) suggests that *Powers of Attorney* may be able to be [created](https://wiki.powersofattorney.com/creation/create#terms-like-create-or-make-a-power-of-attorney-have-various-meanings) by a [commercial entity](https://wiki.powersofattorney.com/terms#meaning-of-commercial-entity). ### Pennsylvania #### Commercial Purposes [Legislation](https://wiki.powersofattorney.com/legislation#the-legislation-governs-powers-of-attorney-for-persons) governs [durable](https://wiki.powersofattorney.com/typescommonlyusedpersons#a-durable-power-of-attorney-operates-if-the-principal-lacks-or-may-lack-capacity) and [non-durable](https://wiki.powersofattorney.com/typescommonlyusedpersons#non-durable-powers-of-attorney) *Powers of Attorney* created by persons ([§5601.1](https://codes.findlaw.com/pa/title-20-pacsa-decedents-estates-and-fiduciaries/pa-csa-sect-20-5601-1.html)). However, [§5601(e.1)](https://codes.findlaw.com/pa/title-20-pacsa-decedents-estates-and-fiduciaries/pa-csa-sect-20-5601.html) excludes the operation of certain provisions (notably provisions dealing with witnessing, inclusion of certain notices and similar) from application to the following types of *Powers of Attorney*:- - a power contained in an instrument used in a commercial transaction - a power coupled with an interest in the subject of the power or for the benefit of a creditor - a power to facilitate transfer of stocks, bonds or other assets - a power contained in governing document for a corporation, partnership, limited liability company or other entity - a power authorizing a director, shareholder, partner or similar to do things on behalf of an entity - a proxy or other delegation of voting rights with respect to management of an entity Certain [indicia](https://wiki.powersofattorney.com/whatisapoa#able-to-be-created-by-a-person-or-commercial-entity) suggests that *Powers of Attorney* may be able to be [created](https://wiki.powersofattorney.com/creation/create#terms-like-create-or-make-a-power-of-attorney-have-various-meanings) by a [commercial entity](https://wiki.powersofattorney.com/terms#meaning-of-commercial-entity). It may be that the exclusion from the ambit of the [legislation](https://wiki.powersofattorney.com/legislation#the-legislation-governs-powers-of-attorney-for-persons) of *Powers of Attorney* used “*in a commercial transaction which authorizes an agency relationship*" as referred to in [§5601(e)(1.1)(i)](https://codes.findlaw.com/pa/title-20-pacsa-decedents-estates-and-fiduciaries/pa-csa-sect-20-5601.html) excludes from the ambit of the [legislation](https://wiki.powersofattorney.com/legislation#the-legislation-governs-powers-of-attorney-for-persons) *Powers of Attorney* created by a [commercial entities](https://wiki.powersofattorney.com/terms#meaning-of-commercial-entity). ## SOME HANDY REFERENCES ### California [§4123](https://codes.findlaw.com/ca/probate-code/prob-sect-4123.html) states: "*(a) In a power of attorney under this division, a principal may grant authority to an attorney-in-fact to act on the principal’s behalf with respect to all lawful subjects and purposes or with respect to one or more express subjects or purposes. The attorney-in-fact may be granted authority with regard to the principal’s property, personal care, or any other matter.* *(b) With regard to property matters, 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.* *© With regard to personal care, a power of attorney may grant authority to make decisions relating to the personal care of the principal, including, but not limited to, determining where the principal will live, providing meals, hiring household employees, providing transportation, handling mail, and arranging recreation and entertainment.*" [§4203](https://codes.findlaw.com/ca/probate-code/prob-sect-4203.html) "*(a) A principal may designate one or more successor attorneys-in-fact to act if the authority of a predecessor attorney-in-fact terminates.* *(b) The principal may grant authority to another person, designated by name, by office, or by function, including the initial and any successor attorneys-in-fact, to designate at any time one or more successor attorneys-in-fact.* *© A successor attorney-in-fact is not liable for the actions of the predecessor attorney-in-fact.*" [§4262](https://codes.findlaw.com/ca/probate-code/prob-sect-4262.html) states: "*Subject to this article, if a power of attorney grants limited authority to an attorney-in-fact, the attorney-in-fact has the following authority:* *(a) The authority granted in the power of attorney, as limited with respect to permissible actions, subjects, or purposes.* *(b) The authority incidental, necessary, or proper to carry out the granted authority.*" [§4263](https://codes.findlaw.com/ca/probate-code/prob-sect-4263.html) states: "*(a) A power of attorney may grant authority to the attorney-in-fact by incorporating powers by reference to another statute, including, but not limited to, the following:* *(1) Powers of attorneys-in-fact provided by the Uniform Statutory Form Power of Attorney Act (Part 3 (commencing with* [§4400](https://codes.findlaw.com/ca/probate-code/prob-sect-4400.html)*)).* *(2) Powers of guardians and conservators provided by Chapter 5 (commencing with* [*§2350*](https://law.justia.com/codes/california/2015/code-prob/division-4/part-4/chapter-5/)*) and Chapter 6 (commencing with* [*§2400*](https://law.justia.com/codes/california/2015/code-prob/division-4/part-4/chapter-5/)*) of Part 4 of Division 4.* *(3) Powers of trustees provided by Chapter 2 (commencing with* [*§16200*](https://law.justia.com/codes/california/2013/code-prob/division-9/part-4/chapter-2/article-1/)*) of Part 4 of Division 9.* *(b) Incorporation by reference to another statute includes any amendments made to the incorporated provisions after the date of execution of the power of attorney.*" [§4265](https://codes.findlaw.com/ca/probate-code/prob-sect-4263.html) states: “*A power of attorney may not authorize an attorney-in-fact to make, publish, declare, amend, or revoke the principal’s will*.” #### Hot Tasks [§4264](https://codes.findlaw.com/ca/probate-code/prob-sect-4264.html) states: "*An attorney-in-fact under a power of attorney may perform any of the following acts on behalf of the principal or with the property of the principal only if the power of attorney expressly grants that authority to the attorney-in-fact:* *(a) Create, modify, revoke, or terminate a trust, in whole or in part.  If a power of attorney under this division empowers the attorney-in-fact to modify or revoke a trust created by the principal, the trust may be modified or revoked by the attorney-in-fact only as provided in the trust instrument.* *(b) Fund with the principal’s property a trust not created by the principal or a person authorized to create a trust on behalf of the principal.* *© Make or revoke a gift of the principal’s property in trust or otherwise.* *(d) Exercise the right to reject, disclaim, release, or consent to a reduction in, or modification of, a share in, or payment from, an estate, trust, or other fund on behalf of the principal.  This subdivision does not limit the attorney-in-fact’s authority to disclaim a detrimental transfer to the principal with the approval of the court.* *(e) Create or change survivorship interests in the principal’s property or in property in which the principal may have an interest.* *(f) Designate or change the designation of beneficiaries to receive any property, benefit, or contract right on the principal’s death.* *(g) Make a loan to the attorney-in-fact.*" [§4266](https://codes.findlaw.com/ca/probate-code/prob-sect-4266.html) states: *The grant of authority to an attorney-in-fact, whether by the power of attorney, by statute, or by the court, does not in itself require or permit the exercise of the power.  The exercise of authority by an attorney-in-fact is subject to the attorney-in-fact’s fiduciary duties.* [§4451](https://codes.findlaw.com/ca/probate-code/prob-sect-4451.html) to [§4463](https://codes.findlaw.com/ca/probate-code/prob-sect-4463.html) contains the [‘statutory’ tasks](https://wiki.powersofattorney.com/whatcanagentdo#statutory-tasks-are-contained-in-the-legislation-of-many-states) which only operate where included in a [government form](https://wiki.powersofattorney.com/governmentforms#government-forms-in-ca-tx-ny-il). #### Non-Commercial Tasks: [§4123](https://codes.findlaw.com/ca/probate-code/prob-sect-4123.html) recognizes that in a *Power of Attorney* for [commercial](https://wiki.powersofattorney.com/terms#meaning-of-commercial) purposes an [agent](https://wiki.powersofattorney.com/agentswhatisagent#an-agent-is-an-entity-appointed-by-the-principal-to-represent-and-bind-the-principal) might be authorized to perform personal care tasks, in addition to “*all lawful subjects and purposes or with respect to one or more express subjects or purposes”*. “*personal care*” tasks are said to include "*where the principal will live, providing meals, hiring household employees, providing transportation, handling mail, and arranging recreation and entertainment”* ### Texas #### *Durable Powers of Attorney* In **Texas**, [§751.031(d)](https://codes.findlaw.com/tx/estates-code/est-sect-751-031.html) provides that “*if the subjects over which authority is granted in a durable power of attorney are similar or overlap, the broadest authority controls*”, other than in a handful of circumstances such as where it may result in an [agent](https://wiki.powersofattorney.com/agentswhatisagent#an-agent-is-an-entity-appointed-by-the-principal-to-represent-and-bind-the-principal) deriving a benefit or similar. The principle found in [§751.031(d)](https://codes.findlaw.com/tx/estates-code/est-sect-751-031.html) in respect of [durable](https://wiki.powersofattorney.com/typescommonlyusedpersons#a-durable-power-of-attorney-operates-if-the-principal-lacks-or-may-lack-capacity) *Powers of Attorney* is not similarly codified in respect of [non-durable](https://wiki.powersofattorney.com/typescommonlyusedpersons#non-durable-powers-of-attorney) *Powers of Attorney.* [§751.031](https://codes.findlaw.com/tx/estates-code/est-sect-751-031.html) states: “*(a) Subject to Subsections (b), ©, and (d) and* [§751.032](https://codes.findlaw.com/tx/estates-code/est-sect-751-032.html)*, if a durable power of attorney grants to an agent the authority to perform all acts that the principal could perform, the agent has the general authority conferred by Subchapter C, Chapter 752.*” [§751.034](https://codes.findlaw.com/tx/estates-code/est-sect-751-034.html) states: "*(a) An agent has authority described in this chapter if the durable power of attorney refers to general authority with respect to the descriptive term for the subjects stated in Chapter 752 or cites the section in which the authority is described.* *(b) A reference in a durable power of attorney to general authority with respect to the descriptive term for a subject in Chapter 752 or a citation to one of those sections incorporates the entire section as if the section were set out in its entirety in the power of attorney.* *© A principal may modify authority incorporated by reference.*" [§751.101](https://codes.findlaw.com/tx/estates-code/est-sect-751-034.html) to [§751.115](https://codes.findlaw.com/tx/estates-code/est-sect-751-034.html) sets out the [‘statutory’ tasks](https://wiki.powersofattorney.com/whatcanagentdo#statutory-tasks-are-contained-in-the-legislation-of-many-states). [§751.101(11)](https://codes.findlaw.com/tx/estates-code/est-sect-751-034.html) states: “*in general, perform any other lawful act that the principal may perform with respect to the transaction*.” ##### Hot Tasks [§751.031(b)](https://codes.findlaw.com/tx/estates-code/est-sect-751-031.html) states: "*(b) An agent may take the following actions on the principal’s behalf or with respect to the principal’s property only if the durable power of attorney designating the agent expressly grants the agent the authority and the exercise of the authority is not otherwise prohibited by another agreement or instrument to which the authority or property is subject:* *(1) create, amend, revoke, or terminate an inter vivos trust;* *(2) make a gift;* *(3) create or change rights of survivorship;* *(4) create or change a beneficiary designation; or* *(5) delegate authority granted under the power of attorney.*" [§751.031](https://codes.findlaw.com/tx/estates-code/est-sect-751-031.html) states: “*© Notwithstanding a grant of authority to perform an act described by Subsection (b), unless the durable power of attorney otherwise provides, an agent who is not an ancestor, spouse, or descendant of the principal may not exercise authority under the power of attorney to create in the agent, or in an individual to whom the agent owes a legal obligation of support, an interest in the principal’s property, whether by gift, right of survivorship, beneficiary designation, disclaimer, or otherwise*.” [§751.032](https://codes.findlaw.com/tx/estates-code/est-sect-751-032.html) states: "*(a) In this section, a gift for the benefit of a person includes a gift to:* *(1) a trust;* *(2) an account under the Texas Uniform Transfers to Minors Act (Chapter 141, Property Code) or a similar law of another state; and* *(3) a qualified tuition program of any state that meets the requirements of* [*Section 529, Internal Revenue Code of 1986*](https://1.next.westlaw.com/Link/Document/FullText?findType=L&originatingContext=document&transitionType=DocumentItem&pubNum=1012823&refType=LQ&originatingDoc=I6e9b6770ee8911eaaee8e1c2b39c9811&cite=26USCAS529) *.* *(b) Unless the durable power of attorney otherwise provides, a grant of authority to make a gift is subject to the limitations prescribed by this section.* *© Language in a durable power of attorney granting general authority with respect to gifts authorizes the agent to only:* *(1) make outright to, or for the benefit of, a person a gift of any of the principal’s property, including by the exercise of a presently exercisable general power of appointment held by the principal, in an amount per donee not to exceed:* *(A) the annual dollar limits of the federal gift tax exclusion under* [*Section 2503(b), Internal Revenue Code of 1986*](https://1.next.westlaw.com/Link/Document/FullText?findType=L&originatingContext=document&transitionType=DocumentItem&pubNum=1012823&refType=SP&originatingDoc=I6e9bdca0ee8911eaaee8e1c2b39c9811&cite=26USCAS2503) *, regardless of whether the federal gift tax exclusion applies to the gift; or* *(B) if the principal’s spouse agrees to consent to a split gift as provided by* [*Section 2513, Internal Revenue Code of 1986*](https://1.next.westlaw.com/Link/Document/FullText?findType=L&originatingContext=document&transitionType=DocumentItem&pubNum=1012823&refType=LQ&originatingDoc=I6e9c03b0ee8911eaaee8e1c2b39c9811&cite=26USCAS2513) *, twice the annual federal gift tax exclusion limit; and* *(2) consent, as provided by* [*Section 2513, Internal Revenue Code of 1986*](https://1.next.westlaw.com/Link/Document/FullText?findType=L&originatingContext=document&transitionType=DocumentItem&pubNum=1012823&refType=LQ&originatingDoc=I6e9c03b1ee8911eaaee8e1c2b39c9811&cite=26USCAS2513) *, to the splitting of a gift made by the principal’s spouse in an amount per donee not to exceed the aggregate annual federal gift tax exclusions for both spouses.* *(d) An agent may make a gift of the principal’s property only as the agent determines is consistent with the principal’s objectives if the agent actually knows those objectives. If the agent does not know the principal’s objectives, the agent may make a gift of the principal’s property only as the agent determines is consistent with the principal’s best interest based on all relevant factors, including the factors listed in* [§751.122](https://codes.findlaw.com/tx/estates-code/est-sect-751-122.html) *and the principal’s personal history of making or joining in making gifts.*" [§751.033](https://codes.findlaw.com/tx/estates-code/est-sect-751-033.html) states: "*Unless the durable power of attorney otherwise provides, and except as provided by* [§751.031©](https://codes.findlaw.com/tx/estates-code/est-sect-751-031.html)*, authority granted to an agent under* [§751.031(b)(4)](https://codes.findlaw.com/tx/estates-code/est-sect-751-031.html) *empowers the agent to:* *(1) create or change a beneficiary designation under an account, contract, or another arrangement that authorizes the principal to designate a beneficiary, including an insurance or annuity contract, a qualified or nonqualified retirement plan, including a retirement plan as defined by* [§752.113](https://codes.findlaw.com/tx/estates-code/est-sect-752-113.html) *, an employment agreement, including a deferred compensation agreement, and a residency agreement;* *(2) enter into or change a P.O.D. account or trust account under Chapter 113; or* *(3) create or change a nontestamentary payment or transfer under Chapter 111.* *(b) If an agent is granted authority under* [§751.031(b)(4)](https://codes.findlaw.com/tx/estates-code/est-sect-751-031.html) *and the durable power of attorney grants the authority to the agent described in* [§752.108](https://codes.findlaw.com/tx/estates-code/est-sect-752-108.html) *or* [§752.113](https://codes.findlaw.com/tx/estates-code/est-sect-752-113.html)*, then, unless the power of attorney otherwise provides, the authority of the agent to designate the agent as a beneficiary is not subject to the limitations prescribed by* [§752.108(b)](https://codes.findlaw.com/tx/estates-code/est-sect-752-108.html) *and* [§752.113©](https://codes.findlaw.com/tx/estates-code/est-sect-752-113.html)*.* *© If an agent is not granted authority under* [§751.031(b)(4)](https://codes.findlaw.com/tx/estates-code/est-sect-751-031.html) *but the durable power of attorney grants the authority to the agent described in* [§752.108](https://codes.findlaw.com/tx/estates-code/est-sect-752-108.html) *or* [§752.113](https://codes.findlaw.com/tx/estates-code/est-sect-752-113.html)*, then, unless the power of attorney otherwise provides and notwithstanding* [*Section 751.031*](https://1.next.westlaw.com/Link/Document/FullText?findType=L&originatingContext=document&transitionType=DocumentItem&pubNum=1089661&refType=LQ&originatingDoc=I4bd3c6e3ee8611eaaee8e1c2b39c9811&cite=TXESTS751.031) *, the agent’s authority to designate the agent as a beneficiary is subject to the limitations prescribed by* [§752.108(b)](https://codes.findlaw.com/tx/estates-code/est-sect-752-108.html) *and* [§752.113©](https://codes.findlaw.com/tx/estates-code/est-sect-752-113.html)*.*" ### New York [§5-1501B](https://codes.findlaw.com/ny/general-obligations-law/gob-sect-5-1501b.html) states: “*…if two or more agents are designated to act together, the power of attorney takes effect when all the agents so designated have signed such power of attorney with their signatures acknowledged*” [§5-1508](https://codes.findlaw.com/ny/general-obligations-law/gob-sect-5-1508.html) states: “*Unless the principal provides otherwise in the power of attorney, the co-agents must act jointly*” [§5-1508](https://codes.findlaw.com/ny/general-obligations-law/gob-sect-5-1508.html) states: “*if prompt action is required to accomplish a purpose of the power of attorney and to avoid irreparable injury to the principal’s interest and a co-agent is unavailable because of absence, illness or other temporary incapacity, the other co-agent or co-agents may act for the principal.*” [§5-1508](https://codes.findlaw.com/ny/general-obligations-law/gob-sect-5-1508.html) states: “*Unless the principal provides otherwise in the power of attorney, if a vacancy occurs because of the death, resignation or incapacity of a co-agent, the remaining agent or agents may act for the principal.*” [§5-1508](https://codes.findlaw.com/ny/general-obligations-law/gob-sect-5-1508.html) states: “*A principal may designate one or more successor agents to serve, if any initial or predecessor agent resigns, dies, becomes incapacitated, is not qualified to serve or declines to serve.*” [*§5-1508*](https://codes.findlaw.com/ny/general-obligations-law/gob-sect-5-1508.html) states: “*A principal may provide for specific succession rules.*” [§5-1508](https://codes.findlaw.com/ny/general-obligations-law/gob-sect-5-1508.html) states: “*Unless the principal provides otherwise in the power of attorney, a successor agent has the same authority as that granted to an initial agent.*” [§5-1508](https://codes.findlaw.com/ny/general-obligations-law/gob-sect-5-1508.html) states: *A co-agent or a successor agent acting under a power of attorney shall have the authority to request, receive and seek to compel a co-agent or predecessor agent to provide a record of all receipts, disbursements and transactions entered into by the agent on behalf of the principal* [§5-1502A](https://codes.findlaw.com/tx/estates-code/est-sect-751-034.html) to [§5-1502M](https://codes.findlaw.com/tx/estates-code/est-sect-751-034.html) sets out the [‘statutory’ tasks](https://wiki.powersofattorney.com/whatcanagentdo#statutory-tasks-are-contained-in-the-legislation-of-many-states). [§5-1502N](https://codes.findlaw.com/tx/estates-code/est-sect-751-034.html) general additional power *In a statutory short form power of attorney, the language conferring general authority with respect to “all other matters” must be construed to mean that the principal authorizes the agent to act as an alter ego of the principal with respect to any and all possible matters and affairs which are not enumerated in sections 5-1502A to 5-1502M, inclusive, of this title, and which the principal can do through an agent; provided, however, that such authority shall not include authorization for the agent to designate a third party to act as agent for the principal or to make medical or other health care decisions for the principal, except as otherwise provided in subdivision one of section 5-1502K of this title.* ##### Hot Tasks An [agent](https://wiki.powersofattorney.com/agentswhatisagent) cannot do the following unless expressly authorized in the *Power of Attorney:-* - add or delete a joint account holder ([§5-1502D](https://codes.findlaw.com/ny/general-obligations-law/gob-sect-5-1502d.html)) - change designation of beneficiaries in respect of a totten trust account ([§5-1502D](https://codes.findlaw.com/ny/general-obligations-law/gob-sect-5-1502d.html)) - change designation of beneficiaries in respect of life insurance: ([§5-1502F](https://codes.findlaw.com/ny/general-obligations-law/gob-sect-5-1502f.html)) - keep property separate ([§5-1505](https://codes.findlaw.com/ny/general-obligations-law/gob-sect-5-1505.html)) ### Florida [§709.2201](https://codes.findlaw.com/fl/title-xl-real-and-personal-property/fl-st-sect-709-2201.html) states: "*(1) Except as provided in this section or other applicable law, an agent may only exercise authority specifically granted to the agent in the power of attorney and any authority reasonably necessary to give effect to that express grant of specific authority.  General provisions in a power of attorney which do not identify the specific authority granted, such as provisions purporting to give the agent authority to do all acts that the principal can do, are not express grants of specific authority and do not grant any authority to the agent.  Court approval is not required for any action of the agent in furtherance of an express grant of specific authority.* *(2) As a confirmation of the law in effect in this state when this part became effective, such authorization may include, without limitation, authority to:* *(a) Execute stock powers or similar documents on behalf of the principal and delegate to a transfer agent or similar person the authority to register any stocks, bonds, or other securities into or out of the principal’s or nominee’s name.* *(b) Convey or mortgage homestead property.  However, if the principal is married, the agent may not mortgage or convey homestead property without joinder of the principal’s spouse or the spouse’s guardian.  Joinder by a spouse may be accomplished by the exercise of authority in a power of attorney executed by the joining spouse, and either spouse may appoint the other as his or her agent.* *© If such authority is specifically granted in a durable power of attorney, make all health care decisions on behalf of the principal, including, but not limited to, those set forth in chapter 765.* *(3) Notwithstanding the provisions of this section, an agent may not:* *(a) Perform duties under a contract that requires the exercise of personal services of the principal;* *(b) Make any affidavit as to the personal knowledge of the principal;* *© Vote in any public election on behalf of the principal;* *(d) Execute or revoke any will or codicil for the principal; or* *(e) Exercise powers and authority granted to the principal as trustee or as court-appointed fiduciary.* *(4) Subject to* [*s. 709.2202*](https://1.next.westlaw.com/Link/Document/FullText?findType=L&originatingContext=document&transitionType=DocumentItem&pubNum=1000006&refType=LQ&originatingDoc=Ie47064c0893211e6a5b1ccf41df1b90e&cite=FLSTS709.2202) *, if the subjects over which authority is granted in a power of attorney are similar or overlap, the broadest authority controls.* *(5) 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.* *(6) 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.*" #### Hot Tasks [§709.2202](https://codes.findlaw.com/fl/title-xl-real-and-personal-property/fl-st-sect-709-2202.html) states: "*(1) Notwithstanding* [*§709.2201*](https://codes.findlaw.com/fl/title-xl-real-and-personal-property/fl-st-sect-709-2201.html)*, an agent may exercise the following authority only if the principal signed or initialed next to each specific enumeration of the authority, the exercise of the authority is consistent with the agent’s duties under* [*s. 709.2114*](https://1.next.westlaw.com/Link/Document/FullText?findType=L&originatingContext=document&transitionType=DocumentItem&pubNum=1000006&refType=LQ&originatingDoc=Iead90c21892f11e6a5b1ccf41df1b90e&cite=FLSTS709.2114) *, and the exercise is not otherwise prohibited by another agreement or instrument:* *(a) Create an inter vivos trust;* *(b) With respect to a trust created by or on behalf of the principal, amend, modify, revoke, or terminate the trust, but only if the trust instrument explicitly provides for amendment, modification, revocation, or termination by the settlor’s agent;* *© Make a gift, subject to subsection (4);* *(d) Create or change rights of survivorship;* *(e) Create or change a beneficiary designation;* *(f) Waive the principal’s right to be a beneficiary of a joint and survivor annuity, including a survivor benefit under a retirement plan; or* *(g) Disclaim property and powers of appointment.* *….* *(3) Notwithstanding a grant of authority to do an act described in subsection (1), unless the power of attorney otherwise provides, an agent who is not an ancestor, spouse, or descendant of the principal may not exercise authority to create in the agent, or in an individual to whom the agent owes a legal obligation of support, an interest in the principal’s property, whether by gift, right of survivorship, beneficiary designation, disclaimer, or otherwise.* *(4) Unless the power of attorney otherwise provides, a provision in a power of attorney granting general authority with respect to gifts authorizes the agent to only:* *(a) Make outright to, or for the benefit of, a person a gift of any of the principal’s property, including by the exercise of a presently exercisable general power of appointment held by the principal, in an amount per donee per calendar year not to exceed the annual dollar limits of the federal gift tax exclusion under 26 U.S.C. s. 2503(b) , as amended, without regard to whether the federal gift tax exclusion applies to the gift, or if the principal’s spouse agrees to consent to a split gift pursuant to 26 U.S.C. s. 2513 , as amended, in an amount per donee per calendar year not to exceed twice the annual federal gift tax exclusion limit; and* *(b) Consent, pursuant to 26 U.S.C. s. 2513 , as amended, to the splitting of a gift made by the principal’s spouse in an amount per donee per calendar year not to exceed the aggregate annual gift tax exclusions for both spouses.* *(5) Notwithstanding subsection (1), if a power of attorney is otherwise sufficient to grant an agent authority to conduct banking transactions, as provided in* [*§709.2208(1)*](https://codes.findlaw.com/fl/title-xl-real-and-personal-property/fl-st-sect-709-2208.html) *, conduct investment transactions as provided in* [*§709.2208(2)*](https://codes.findlaw.com/fl/title-xl-real-and-personal-property/fl-st-sect-709-2208.html) *, or otherwise make additions to or withdrawals from an account of the principal, making a deposit to or withdrawal from an insurance policy, retirement account, individual retirement account, benefit plan, bank account, or any other account held jointly or otherwise held in survivorship or payable on death, is not considered to be a change to the survivorship feature or beneficiary designation, and no further specific authority is required for the agent to exercise such authority.  A financial institution or broker-dealer does not have a duty to inquire as to the appropriateness of the agent’s exercise of that authority and is not liable to the principal or any other person for actions taken in good faith reliance on the appropriateness of the agent’s actions.  This subsection does not eliminate the agent’s fiduciary duties to the principal with respect to any exercise of the power of attorney.*" [§709.2208(1)](https://codes.findlaw.com/fl/title-xl-real-and-personal-property/fl-st-sect-709-2208.html) and [§709.2208(2)](https://codes.findlaw.com/fl/title-xl-real-and-personal-property/fl-st-sect-709-2208.html) contain the closest thing in Florida to [‘statutory’ tasks](https://wiki.powersofattorney.com/whatcanagentdo#statutory-tasks-are-contained-in-the-legislation-of-many-states)*.* #### Non-Commercial Tasks [§709.2109(3)(b)](https://codes.findlaw.com/fl/title-xl-real-and-personal-property/fl-st-sect-709-2109.html) in **Florida** provides for inclusion of health care decisions in a *Power of Attorney*, albeit not exclusively and for example, a person may prefer to create an exclusive purpose, health care advance directive or designation of health care surrogate, the terms of which prevail over any inconsistent terms contained in a *Power of Attorney* ### Illinois [§2-10.3](https://codes.findlaw.com/il/chapter-755-estates/il-st-sect-755-45-2-10-3.html) states: "*Unless a power of attorney otherwise provides, a successor agent has the same authority as that granted to an initial agent…”* [§3-4](https://codes.findlaw.com/il/chapter-755-estates/il-st-sect-755-45-3-4.html) states in respect of the [government form](https://wiki.powersofattorney.com/governmentforms#government-forms-in-ca-tx-ny-il):- *“Explanation of powers granted in the statutory short form power of attorney for property.  This Section defines each category of powers listed in the statutory short form power of attorney for property and the effect of granting powers to an agent, and is incorporated by reference into the statutory short form.  Incorporation by reference does not require physical attachment of a copy of this Section 3-4 to the statutory short form power of attorney for property.  When the title of any of the following categories is retained (not struck out) in a statutory property power form, the effect will be to grant the agent all of the principal’s rights, powers and discretions with respect to the types of property and transactions covered by the retained category, subject to any limitations on the granted powers that appear on the face of the form.  The agent will have authority to exercise each granted power for and in the name of the principal with respect to all of the principal’s interests in every type of property or transaction covered by the granted power at the time of exercise, whether the principal’s interests are direct or indirect, whole or fractional, legal, equitable or contractual, as a joint tenant or tenant in common or held in any other form…* " [§3-4](https://codes.findlaw.com/il/chapter-755-estates/il-st-sect-755-45-3-4.html) states in respect of the [government form](https://wiki.powersofattorney.com/governmentforms#government-forms-in-ca-tx-ny-il):- “*The agent will be under no duty to exercise granted powers or to assume control of or responsibility for the principal’s property or affairs;*” [§3-4](https://codes.findlaw.com/il/chapter-755-estates/il-st-sect-755-45-3-4.html) states in respect of the [government form](https://wiki.powersofattorney.com/governmentforms#government-forms-in-ca-tx-ny-il):- “*when granted powers are exercised, the agent will be required to act in good faith for the benefit of the principal using due care, competence, and diligence in accordance with the terms of the statutory property power…*” [§3-4](https://codes.findlaw.com/il/chapter-755-estates/il-st-sect-755-45-3-4.html) states in respect of the [government form](https://wiki.powersofattorney.com/governmentforms#government-forms-in-ca-tx-ny-il):- "*The agent… will have authority to sign and deliver all instruments, negotiate and enter into all agreements and do all other acts reasonably necessary to implement the exercise of the powers granted to the agent.”* [§3-4](https://codes.findlaw.com/il/chapter-755-estates/il-st-sect-755-45-3-4.html) states in respect of the [government form](https://wiki.powersofattorney.com/governmentforms#government-forms-in-ca-tx-ny-il):- *“The agent will have authority to exercise each granted power for and in the name of the principal with respect to all of the principal’s interests in every type of property or transaction covered by the granted power at the time of exercise, whether the principal’s interests are direct or indirect, whole or fractional, legal, equitable or contractual, as a joint tenant or tenant in common or held in any other form”* [§3-4](https://codes.findlaw.com/il/chapter-755-estates/il-st-sect-755-45-3-4.html) sets out the [‘statutory’ tasks](https://wiki.powersofattorney.com/whatcanagentdo#statutory-tasks-are-contained-in-the-legislation-of-many-states). The [legislation](https://wiki.powersofattorney.com/legislation#the-legislation-governs-powers-of-attorney-for-persons) of **Illinois** is bereft of mention of special tasks, containing no equivalent to provisions seen in many of the remaining [Six (6) Greater States](https://wiki.powersofattorney.com/introduction#ca-tx-ny-fl-il-and-pa), such as **Pennsylvania** where ‘personal and family maintenance’ is a statutory task. Notably in the [government form](https://wiki.powersofattorney.com/governmentforms#government-forms-in-ca-tx-ny-il), reference to limitations and directions refers to sale of stock, borrowings by agents, powers to make gifts, amendment of trusts and yet no mention is made of benefit to agents, other than in the [government form](https://wiki.powersofattorney.com/governmentforms#government-forms-in-ca-tx-ny-il) [§3-3](https://codes.findlaw.com/il/chapter-755-estates/il-st-sect-755-45-3-3.html) that states: *"(NOTE: Your agent will be entitled to reimbursement for all reasonable expenses incurred in acting under this power of attorney. Strike out paragraph 5 if you do not want your agent to also be entitled to reasonable compensation for services as agent.)* *5. My agent shall be entitled to reasonable compensation for services rendered as agent under this power of attorney."* #### Hot Tasks [§2-9](https://codes.findlaw.com/il/chapter-755-estates/il-st-sect-755-45-2-9.html) states: “*An agent may not revoke or amend a trust revocable or amendable by the principal or require the trustee of any trust for the benefit of the principal to pay income or principal to the agent without specific authority and specific reference to the trust in the agency.  The agent shall have access to and the right to copy (but not to hold) the principal’s will, trusts and other personal papers and records to the extent the agent deems relevant for purposes of this Section.  This Section shall not apply to any Totten Trust, Payable on Death Account, or comparable trust account arrangement where the terms of such trust are contained entirely on the financial institution’s signature card insofar as an agent acting under a power of attorney executed in accordance with this Act shall be permitted to withdraw income or principal from such account if the power of attorney grants the agent authority to conduct financial institution transactions on the principal’s behalf and the agent’s authority to access such account is not expressly limited or withheld in the agency*” [§3-4](https://codes.findlaw.com/il/chapter-755-estates/il-st-sect-755-45-3-4.html) states in respect of the [government form](https://wiki.powersofattorney.com/governmentforms#government-forms-in-ca-tx-ny-il):- *“the agent will not have power under any of the statutory categories (a) through (o) to make gifts of the principal’s property, to exercise powers to appoint to others or to change any beneficiary whom the principal has designated to take the principal’s interests at death under any will, trust, joint tenancy, beneficiary form or contractual arrangement.”* ### Pennsylvania The mandatory notice in [§5601](https://codes.findlaw.com/pa/title-20-pacsa-decedents-estates-and-fiduciaries/pa-csa-sect-20-5601.html) states:- “*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."* [§5601.4(e)](https://codes.findlaw.com/pa/title-20-pacsa-decedents-estates-and-fiduciaries/pa-csa-sect-20-5601-4.html) states: “*(e) Similar or overlapping subjects.–Subject to subsections (a), (b), (d) and (d.1), if the subjects over which authority is granted in a power of attorney are similar or overlap, the broadest authority controls.*” [§5601](https://codes.findlaw.com/pa/title-20-pacsa-decedents-estates-and-fiduciaries/pa-csa-sect-20-5601.html) states: “*(a) General rule.–In addition to all other powers that may be delegated to an agent, any or all of the powers referred to in section 5602(a) (relating to form of power of attorney) may lawfully be granted in writing to an agent and, unless the power of attorney expressly directs to the contrary, shall be construed in accordance with the provisions of this chapter.*” [§5602(a)](https://codes.findlaw.com/pa/title-20-pacsa-decedents-estates-and-fiduciaries/pa-csa-sect-20-5602.html) contains not only statutory tasks commonly seen in other states but also defined terms that may by incorporated by mere reference, for example;- - *to create a trust for my benefit* - *to make additions to an existing trust for my benefit* - *claim an elective share of the estate of my spouse* - *renounce fiduciary positions* - *withdraw and receive the income or corpus of a trust* [§5603](https://codes.findlaw.com/pa/title-20-pacsa-decedents-estates-and-fiduciaries/pa-csa-sect-20-5603.html) contains the [‘statutory’ tasks](https://wiki.powersofattorney.com/whatcanagentdo#statutory-tasks-are-contained-in-the-legislation-of-many-states) and definitions of the related expressions referred to in [§5602(a)](https://codes.findlaw.com/pa/title-20-pacsa-decedents-estates-and-fiduciaries/pa-csa-sect-20-5602.html). [§5601.4](https://codes.findlaw.com/pa/title-20-pacsa-decedents-estates-and-fiduciaries/pa-csa-sect-20-5601-4.html) states:- "*© Scope of authority.–*Subject to subsections (a), (b), (d), (d.1) and (e), if a power of attorney grants to an agent authority to do all acts that a principal is authorized to perform, the agent has all of the powers which may be incorporated by reference pursuant to section* [§5602(a)](https://codes.findlaw.com/pa/title-20-pacsa-decedents-estates-and-fiduciaries/pa-csa-sect-20-5602.html)…"* #### Hot Tasks [§5601.4](https://codes.findlaw.com/pa/title-20-pacsa-decedents-estates-and-fiduciaries/pa-csa-sect-20-5601-4.html) states "*(a) General rule.–An agent under a power of attorney may do the following on behalf of the principal or with the principal’s property only if the power of attorney expressly grants the agent the authority and exercise of the authority is not otherwise prohibited by another agreement or instrument to which the authority or property is subject:* *(1) Create, amend, revoke or terminate an inter vivos trust other than as permitted under section 5602(a)(2), (3) and (7) (relating to form of power of attorney).* *(2) Make a gift.* *(3) Create or change rights of survivorship.* *(4) Create or change a beneficiary designation.* *(5) Delegate authority granted under the power of attorney.* *(6) Waive the principal’s right to be a beneficiary of a joint and survivor annuity, including a survivor benefit under a retirement plan.* *(7) Exercise fiduciary powers that the principal has authority to delegate.* *(8) Disclaim property, including a power of appointment.*" [§5601.4](https://codes.findlaw.com/pa/title-20-pacsa-decedents-estates-and-fiduciaries/pa-csa-sect-20-5601-4.html) states *(b) Limitation.-- Notwithstanding a grant of authority to do an act described in subsection (a), unless the power of attorney otherwise provides, an agent that is not an ancestor, spouse or descendant of the principal may not exercise authority under a power of attorney to create in the agent, or in an individual to whom the agent owes a legal obligation of support, an interest in the principal’s property, whether by gift, right of survivorship, beneficiary designation, disclaimer or otherwise*…" [§5601.4](https://codes.findlaw.com/pa/title-20-pacsa-decedents-estates-and-fiduciaries/pa-csa-sect-20-5601-4.html) states "**(d) Gifts.–** *(1) Unless the power of attorney otherwise provides, the power to make limited gifts or other language in a power of attorney granting general authority with respect to gifts authorizes the agent only to:* *(i) Make outright to or for the benefit of a person, a gift of any of the principal’s property, including by the exercise of a presently exercisable general power of appointment held by the principal:* *(A) in an amount per donee not to exceed the annual dollar limits of the Federal gift tax exclusion under section 2503(b) of the Internal Revenue Code of 1986 ( Public Law 99-514 , 26 U.S.C. § 2503(b) ), without regard to whether the Federal gift tax exclusion applies to the gift; or* *(B) if the principal’s spouse agrees to consent to a split gift pursuant to section 2513 of the Internal Revenue Code of 1986 ( 26 U.S.C. § 2513 ), in an amount per donee not to exceed twice the annual Federal gift tax exclusion limit.* *(ii) Consent, pursuant to section 2513 of the Internal Revenue Code of 1986 , to the splitting of a gift made by the principal’s spouse in an amount per donee not to exceed the aggregate annual gift tax exclusions for both spouses.* *(2) An agent may make a gift of the principal’s property only as the agent determines is consistent with the principal’s objectives if actually known by the agent and, if unknown, as the agent determines is consistent with the principal’s best interest based on all relevant factors, including:* *(i) The value and nature of the principal’s property.* *(ii) The principal’s foreseeable obligations and need for maintenance.* *(iii) Minimization of taxes, including income, estate, inheritance, generation-skipping transfer and gift taxes.* *(iv) Eligibility for a benefit, program or assistance under a statute or regulation.* *(v) The principal’s personal history of making or joining in making gifts.* *(3) As used in this subsection, the phrase “a gift for the benefit of a person” includes a gift to a trust, an account under Chapter 53 (relating to Pennsylvania Uniform Transfers to Minors Act) and a tuition savings account or prepaid tuition plan as defined under section 529 of the Internal Revenue Code of 1986 ( 26 U.S.C. § 529 ).* ***(d.1) Disclaimers.–*** *(1) Unless the power of attorney otherwise provides, the grant of the power to disclaim any interest in property or a grant of general authority with disclaimers authorizes the agent to release or disclaim any interest in property on behalf of the principal in accordance with Chapter 62 (relating to disclaimers) or section 6103.1 (relating to release of powers and interests and disclaimer of powers), provided that any disclaimer under Chapter 62 shall be in accordance with the provisions of section 6202 (relating to disclaimers by fiduciaries or agents) in the case of a principal who is an incapacitated person at the time of the execution of the disclaimer.* *(2) An agent may make a disclaimer as the agent determines is consistent with the principal’s objectives if actually known by the agent and, if unknown, as the agent determines is consistent with the principal’s best interest based on all relevant factors, including:* *(i) The value and nature of the principal’s property.* *(ii) The principal’s foreseeable obligations and need for maintenance.* *(iii) Minimization of taxes, including income, estate, inheritance, generation-skipping transfer and gift taxes.* *(iv) Eligibility for a benefit, program or assistance under a statute or regulation.* *(v) The principal’s personal history of making or joining in making gifts.*" [^1]: [113 Misc 2d 912, New York. Supreme Court.](https://casetext.com/case/mallory-v-mallory-2) [^2]: Supra footnote 1. [^3]: Ibid. [^4]: [330 S.W.2d 361, Court of Appeals of Tennessee](https://law.justia.com/cases/tennessee/court-of-appeals/1959/330-s-w-2d-361-1.html) [^5]: Ibid. [^6]: Ibid. [^7]: Being *Powers of Attorney* not excluded from the ambit of the [legislation](https://wiki.powersofattorney.com/legislation#the-legislation-governs-powers-of-attorney-for-persons) - [click here](https://wiki.powersofattorney.com/legislation#exclusions) to read more. [^8]: Being s *Power of Attorney* not [excluded](https://wiki.powersofattorney.com/legislation#exclusions) from the ambit of the [legislation](https://wiki.powersofattorney.com/legislation#the-legislation-governs-powers-of-attorney-for-persons) - [click here](https://wiki.powersofattorney.com/legislation#exclusions) to read more. [^9]: Being a *Power of Attorney* not excluded from the ambit of the [legislation](https://wiki.powersofattorney.com/legislation#the-legislation-governs-powers-of-attorney-for-persons) - [click here](https://wiki.powersofattorney.com/legislation#exclusions) to read more. [^10]: That is, not *Powers of Attorney* excluded from the ambit of the [legislation](https://wiki.powersofattorney.com/legislation#the-legislation-governs-powers-of-attorney-for-persons) - [click here](https://wiki.powersofattorney.com/legislation#exclusions) to read more. [^11]: Being a restriction that only applies to a *Power of Attorney* for a [person](https://wiki.powersofattorney.com/terms#meaning-of-person-ie-natural-person) not excluded from the ambit of the [legislation](https://wiki.powersofattorney.com/legislation#the-legislation-governs-powers-of-attorney-for-persons) - [click here](https://wiki.powersofattorney.com/legislation#exclusions) to read more. [^12]: I.e. by virtue of duress, unconscionable conduct or undue influence etc. [^13]: Being not a *Power of Attorney* excluded from the ambit of the [legislation](https://wiki.powersofattorney.com/legislation#the-legislation-governs-powers-of-attorney-for-persons) - [click here](https://wiki.powersofattorney.com/legislation#exclusions) to read more. [^14]: Being not a *Power of Attorney* excluded from the ambit of the [legislation](https://wiki.powersofattorney.com/legislation#the-legislation-governs-powers-of-attorney-for-persons) - [click here](https://wiki.powersofattorney.com/legislation#exclusions) to read more. [^15]: Being not a *Power of Attorney* excluded from the ambit of the [legislation](https://wiki.powersofattorney.com/legislation#the-legislation-governs-powers-of-attorney-for-persons) - [click here](https://wiki.powersofattorney.com/legislation#exclusions) to read more. [^16]: The legislation in Illinois is somewhat intertwined, nonethelss separate documents are prescribed for [commercial](https://wiki.powersofattorney.com/terms#meaning-of-commercial) and ‘health’ purposes. [^17]: Being not *Powers of Attorney* excluded from the ambit of the [legislation](https://wiki.powersofattorney.com/legislation#the-legislation-governs-powers-of-attorney-for-persons) - [click here](https://wiki.powersofattorney.com/legislation#exclusions) to read more. [^18]: Being not a *Power of Attorney* excluded from the ambit of the [legislation](https://wiki.powersofattorney.com/legislation#the-legislation-governs-powers-of-attorney-for-persons) - [click here](https://wiki.powersofattorney.com/legislation#exclusions) to read more. [^19]: Ibid. [^20]: Ibid. [^21]: Ibid. [^22]: Ibid. [^23]: Being not *Powers of Attorney* excluded from the ambit of the [legislation](https://wiki.powersofattorney.com/legislation#the-legislation-governs-powers-of-attorney-for-persons) - [click here](https://wiki.powersofattorney.com/legislation#exclusions) to read more. [^24]: Being not a *Power of Attorney* excluded from the ambit of the [legislation](https://wiki.powersofattorney.com/legislation#the-legislation-governs-powers-of-attorney-for-persons) - [click here](https://wiki.powersofattorney.com/legislation#exclusions) to read more. [^25]: Ibid. [^26]: [Click here](https://wiki.powersofattorney.com/legislation#exclusions) to read more. [^27]: Ibid. [^28]: being not a *Power of Attorney [excluded](https://wiki.powersofattorney.com/legislation#exclusions) from the ambit of the [legislation](https://wiki.powersofattorney.com/legislation#the-legislation-governs-powers-of-attorney-for-persons). [^29]: Being not *Powers of Attorney* excluded from the ambit of the [legislation](https://wiki.powersofattorney.com/legislation#the-legislation-governs-powers-of-attorney-for-persons) - [click here](https://wiki.powersofattorney.com/legislation#exclusions) to read more.