Minnesota Power of Attorney

Minnesota Power of Attorney

Minnesota Power of Attorney

Minnesota Power of Attorney – Requirements

A Minnesota Power of Attorney document is used to create a legal relationship whereby:

  • one party – known as a principal,
  • authorizes another party – known as an attorney-in-fact,
  • to act on behalf of the principal in regards to certain specified legal matters.

Minnesota Power of Attorney – Delegation of Parental Rights

A Minnesota Power of Attorney document can also be utilized to delegate parental rights over a minor child to another person for a limited period of time pursuant to a specialized form.

Minnesota Power of Attorney – Authority

A Minnesota Power of Attorney document can be created either pursuant to:

  • statutory authority – including that which authorizes the execution of a Minnesota Statutory Short Form Power of Attorney document, or
  • nonstatutory authority – historical common-law.

In addition, power of attorney documents which are validly created pursuant to the laws of another state or country may also be recognizable in Minnesota – for some purposes.

Minnesota Power of Attorney – Nature

A Minnesota Power of Attorney document can be either:

  • durable – which will continue to be effective even if the principal becomes incapacitated, or
  • nondurable – which will terminate upon the incapacity of the principal.

Minnesota Power of Attorney – Durable

A Minnesota Power of Attorney document will be durable if it contains a provision similar to the following:

This power of attorney shall not be affected by incapacity or incompetence of the principal“.

However, the power of attorney document may use the term disability in lieu of incapacity or incompetence in such a statement, and still be a durable Minnesota power of attorney.

Minnesota Power of Attorney – Authorized Principal

Any competent adult may, as principal, designate:

  • another person, or
  • an authorized corporation,

as the principal’s attorney-in-fact, pursuant to a written power of attorney.

Surprisingly, the Minnesota power of attorney statutes do not define the term competent, although an alternate statutory term – incapacity – refers to a person’s state of being during which legal grounds exist for the appointment of a guardian or conservator for such person.

Legal entities, such as corporations, partnerships, limited liability companies, or trusts, can also create a Minnesota power of attorney.

Minnesota Power of Attorney – Execution Requirements

A Minnesota Power of Attorney document will be validly executed when it is dated and signed by the principal.

However, if the principal is physically unable to sign the power of attorney document, it can be signed:

  • by another person on the principal’s behalf, or
  • by means of the principal making a mark on the document in lieu of a signature,

providing that such signature or mark is properly acknowledged by the principal before a notary public.

Minnesota Power of Attorney – Physical Limitation Accommodations

Minnesota has statutory provisions addressing the accommodation of a principal’s physical limitations with respect to the execution of a a Minnesota power of attorney document.

A Minnesota licensed attorney can properly advise a principal as to how the principal can execute a Minnesota Power of Attorney document – notwithstanding the principal’s physical limitations.

Minnesota Power of Attorney – Presumption of Valid Execution

A Minnesota Power of Attorney document is presumed to be valid if it is dated, and purports to be signed by the principal named therein.

Minnesota Power of Attorney – Acknowledgment

Under the Minnesota power of attorney statutes, the principal’s signature on a Minnesota Power of Attorney document need not be acknowledged before a notary public.

However, third parties may require it, and a Minnesota Statutory Short Form Power of Attorney document will look incomplete without such an acknowledgment.

An acknowledgment of the principal’s signature will be required in order for a Minnesota Power of Attorney document to be recorded in order to support a transfer of real estate by the attorney-in-fact.

Minnesota Power of Attorney – Standard Document Form

 While Minnesota has no single “standard” power of attorney document, it does have a permitted statutory power of attorney form – known as a Minnesota Statutory Short Form Power of Attorney – which may be used by an adult principal after January 1, 2014, in order to appoint one or more attorneys-in-fact.

However, the Minnesota Statutory Short Form Power of Attorney document has numerous performance options which should be reviewed together with legal counsel.

Minnesota Common Law Powers of Attorney

The Minnesota Statutory Short Form Power of Attorney document is not the only power of attorney document which can be validly created in Minnesota.

Powers of attorney created pursuant to nonstatutory common-law can also be effective in Minnesota.

However, the effectiveness of a Minnesota common law power of attorney document may be limited if a third-party will not recognize its validity.

Minnesota Power of Attorney – Effective Date

A Minnesota Statutory Short Form Power of Attorney document becomes effective when it has been properly executed – which may require that it be acknowledged by the principal before a notary public.

However, if the power of attorney document is not delivered to the attorney-in-fact, the attorney-in-fact may be unable to take action pursuant to the power of attorney document for lack of evidence of the attorney-in-fact’s authority.

Minnesota Power of Attorney – Springing Date

The effectiveness in Minnesota of a power of attorney document created pursuant to nonstatutory common-law can be conditioned upon the future incapacity of the principal, if the document contains a provision similar to the following:

This power of attorney shall become effective upon the incapacity or incompetence of the principal

Such a designation creates what is known as a springing power of attorney, because the authority of the attorney-in-factsprings” into existence upon the satisfaction of such a condition.

Minnesota Power of Attorney – Recording

Except with respect to real estate transactions, a Minnesota Power of Attorney document does not need to be recorded anywhere in order to be effective.

However, a certified copy of a Minnesota Power of Attorney document which has been recorded in the office of a Minnesota County Recorder or Registrar of Titles has the same force and effect as a Minnesota Power of Attorney bearing the original signature of the principal.

Minnesota Power of Attorney – Authority of Attorney-in-Fact

Any action taken by an attorney-in-fact pursuant to a Minnesota power of attorney document binds not only the principal, but also:

  • the principal’s heirs and assigns, and
  • the personal representative of the principal’s estate,

to the same extent as if the same action had been taken by the principal – unless the principal has had a Guardian or Conservator appointed.

Minnesota Power of Attorney – Multiple Attorneys-in-Fact

A Minnesota power of attorney document can authorize more than one attorney-in-fact to act on behalf of a principal, either jointly, or individually.

Unless the Minnesota power of attorney document provides otherwise, each attorney-in-fact acting pursuant to the authority of a Minnesota power of attorney document can bind the principal, whether or not any other attorneys-in-fact consent to the action.

Minnesota Power of Attorney – Dissent by One Attorney-in-Fact

When two or more attorneys-in-fact are authorized to act on behalf of a principal pursuant to a Minnesota power of attorney document, an attorney-in-fact who does not join with, or consent to, the action of one or more other attorneys-in-fact is not liable for such action.

In addition, the failure of an attorney-in-fact to object to the action of one or more other attorneys-in-fact does not constitute a consent to such action.

Minnesota Power of Attorney – Death, Resignation or Incapacity of Attorney-in-Fact

Upon the death, incapacity, or resignation of one of several attorneys-in-fact appointed to act for a principal pursuant to a Minnesota Statutory Short Form Power of Attorney document, the surviving or remaining attorneys-in-fact will continue to have authority to act for the principal.

Such surviving or remaining attorneys-in-fact will be authorized to execute an affidavit setting forth facts regarding the death, incompetency, or resignation of any of the other attorneys-in-fact who had been appointed to act for the principal.

Any such affidavit will be conclusive proof with respect to the occurrence of such facts as to any party relying on such an affidavit.

Minnesota Power of Attorney – Successor Attorney-in-Fact

An attorney-in-fact:

  • who is named in a Minnesota power of attorney document to succeed to an attorney-in-fact who has died, resigned, or is otherwise unable to serve, or
  • who was named as a co-attorney-in-fact,

will not be liable for any action taken by any predecessor attorney-in-fact.

Minnesota Power of Attorney – Term of Appointment

The authority of an attorney-in-fact appointed pursuant to a Minnesota Power of Attorney document can have either an indefinite term, or a specified term of some duration.

Minnesota Power of Attorney – Limited Duration

A Minnesota Power of Attorney document can have a limited duration.

However, in order to be effective, any expiration date in a Minnesota Power of Attorney document must be stated in terms of a specific month, day, and year – other than a temporary delegation of parental authority – which pursuant to Minnesota statutory authority, cannot extend for more than one year.

In all events, the authority of an attorney-in-fact to act pursuant to a Minnesota Power of Attorney document will terminate upon the death of the principal.

Minnesota Power of Attorney – Termination

The authority of an attorney-in-fact to act on behalf of a principal which was granted by a durable Minnesota Power of Attorney document will terminate upon the earliest to occur of:

  • its revocation by the principal,
  • the death of the principal,
  • the expiration of a termination date properly stated in the power of attorney, or
  • in the case of a power of attorney in which the spouse of the principal was appointed as the attorney-in-fact, upon the commencement of proceedings for dissolution, separation, or annulment of the principal’s

In addition to the above terminating events, a non-durable Minnesota power of attorney will also terminate upon the earlier incapacity or incompetence of the principal.

Minnesota Power of Attorney – Death of the Principal

For purposes of a Minnesota Power of Attorney document, a principal is presumed to be alive until either:

  • actual proof of death can be obtained – pursuant to a death certificate, or
  • there is a legal adjudication of the principal’s death by a court of competent jurisdiction.

Minnesota Power of Attorney – Third Party Liability

Any third party who refuses to accept the authority of an attorney-in-fact appointed pursuant to a Minnesota Statutory Short Form Power of Attorney which:

(1)       contains a specimen signature of the attorney-in-fact authorized to act; and

(2)       with respect to a power of attorney document executed on or after January 1, 2014, contains an acknowledgment that the attorney-in-fact has read and understood the notice to the attorney-in-fact required under M.S. Section 523.23; and

(3)       when applicable, is accompanied by legally sufficient affidavits that identify the non-revocation and continuing effect of the power of attorney;

is liable to the principal and to the principal’s heirs, assigns, and representative of the estate of the principal in the same manner as the third party would has been liable had such a party refused to accept the authority of the principal to act on the principal’s own behalf, unless:

(1)       the party has actual notice of the revocation of the power of attorney document prior to the exercise of the power,

(2)       the duration of the appointment stated in the power of attorney document has expired,

(3)       the party has actual knowledge of the death of the principal, or

(4)        if the power of attorney is not a durable power of attorney, the party has actual notice of a judicial determination that the principal is legally incompetent.

Minnesota Power of Attorney – Notice of Duties

With respect to a Minnesota Statutory Short Form Power of Attorney document which is signed after January 1, 2014, the attorney-in-fact must have signed a written acknowledgment with respect to receiving notice of his or her duties and obligations under the Power of Attorney document in order for the principal to receive the benefit of the enforcement protections afforded a Minnesota Statutory Short Form Power of Attorney document.

Minnesota Power of Attorney – Common Law

A third party who refuses to accept the validity of a nonstatutory common-law form of a Minnesota power of attorney document does not have any statutory liability to the principal’s heirs, assigns, and representative of the estate of the principal by refusing to recognize the validity of such a power of attorney document – although perhaps some liability may be imposed upon the third party pursuant to non-statutory common law.

Minnesota Power of Attorney – Duties of an Attorney-in-Fact

An attorney-in-fact appointed pursuant to a Minnesota Power of Attorney document has no duty:

  • to exercise any power conferred upon the attorney-in-fact, or
  • to act in any capacity on behalf of a principal in any transaction.

However, if the attorney-in-fact does exercise any such power or act on behalf of the principal, the attorney-in-fact shall:

  • exercise the power in the same manner as an ordinarily prudent person of discretion and intelligence would exercise in the management of the person’s own affairs,
  • have the interests of the principal utmost in mind, and
  • keep complete records of all transactions entered into by the attorney-in-fact on behalf of such principal.

Minnesota Power of Attorney – Do-it-Yourself

While “fill in the blankMinnesota Statutory Short Form Power of Attorney or common law power of attorney forms can either be downloaded, or otherwise obtained from many sources – including perhaps LegalDoom.com 🙂 – the preparation of such documents is best left to licensed attorneys, who can not only fill in the blanks properly, but also provide appropriate counsel regarding the legal effect of, and perhaps the tax consequences of, the execution and delivery of the Power of Attorney document.

There is much that can go wrong when an executed Minnesota Power of Attorney document:

  • grants improper powers to certain attorneys-in-fact, or
  • was drafted without the benefit of certain available statutory protections.

Minnesota Power of Attorney – What Could Go Wrong?

While the Minnesota Power of Attorney document forms may appear to be simple, and self explanatory, preparing one is not a job for the do-it-yourselfer.

Minnesota Power of Attorney – Legal Description

If a Minnesota Statutory Short Form Power of Attorney documents lists a street address instead of a legal description with respect to a purported limitation on the authority of the attorney-in-fact to exercise powers of the principal over real estate, such a limitation makes the document ineffective for all real estate transactions.

If an improper or incomplete legal description was listed on the Minnesota Statutory Short Form Power of Attorney document, it may also be ineffective for all real estate transactions.

Since real property legal description mistakes can reasonably be anticipated to be made by someone who is not a licensed Minnesota attorney, it is always prudent, and usually cost effective, to have a Minnesota Statutory Short Form Power of Attorney document prepared by a licensed Minnesota attorney.

Minnesota Power of Attorney – Recording

If a Minnesota Statutory Short Form Power of Attorney document is not properly acknowledged, or fails to include a draftsman’s statement, it will not be recordable in the county real estate records, and thus will not allow a deed to be executed by an attorney-in-fact on behalf of the principal.

Minnesota Power of Attorney – Capacity

If a Minnesota Statutory Short Form Power of Attorney document does not identify that it is to continue in event of the incapacity of the principal, its effectiveness is greatly reduced, and may not be usable just when it is needed most.

Minnesota Power of Attorney – Necessity of a Conservator

If a Minnesota Power of Attorney document is ineffective for a proposed real estate transaction, and the principal no longer has capacity to execute a deed to the proposed transferee, a Conservatorship proceeding may be necessary in order to transfer the real estate – which would involve a sizable expense.

Minnesota Power of Attorney – Accountability by the Attorney-in-fact

The issue of accountability by the attorney-in-fact to the principal, and perhaps to other family members as well, is a subject which should be properly addressed in a Minnesota Power of Attorney document by the principal – after discussions with a Minnesota licensed attorney.

Minnesota Power of Attorney – Criminal Behavior

In addition to drafting or execution issues which might make a Minnesota Power of Attorney document ineffective, Minnesota County attorneys have prosecuted several attorneys-in-fact who misused their authority under a Minnesota Power of Attorney document for their own improper financial benefit.

Conclusion – Minnesota Powers of Attorney

Please contact Minnesota Attorney Gary C. Dahle for assistance with the preparation, or enforcement, of any Minnesota Power of Attorney document.

Copyright 2017 – All Rights Reserved.

No claim to original government works.

Gary C. Dahle – Attorney at Law

2704 County Road 10, Mounds View, MN 55112

Phone:  763-780-8390   Fax: 763-780-1735

Gary@dahlelaw.com

Legal Disclaimer

Information provided herein is only for general informational and educational purposes. The laws relating to Minnesota powers of attorney involve many complex legal issues.

If you have a specific legal problem about which you are seeking advice, either consult with your own attorney or retain an attorney of your choice.

Gary C. Dahle, Attorney at Law, is licensed to practice law only in the State of Minnesota, and in the State of North Dakota, in the United States of America.

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