AI-assisted research summary: This section explains how a durable power of attorney is created and when it is valid, including special rules for execution, out-of-state powers of attorney, and who may serve as an agent.
14-5501 - Durable power of attorney; creation; validity 14-5501 . Durable power of attorney; creation; validity A. A durable power of attorney is a written instrument by which a principal designates another person as the principal's agent. The instrument shall contain words that demonstrate the principal's intent that the authority conferred in the durable power of attorney may be exercised: 1. If the principal is subsequently a person with a disability or incapacitated. 2. Regardless of how much time has elapsed, unless the instrument states a definite termination time. B. The written instrument may demonstrate the principal's intent required by subsection A of this section using either of the following statements or similar language: 1. "This power of attorney is not affected by subsequent disability or incapacity of the principal or lapse of time." 2. "This power of attorney is effective on the disability or incapacity of the principal." C. A power of attorney executed in another jurisdiction of the United States is valid in this state if the power of attorney was validly executed in the jurisdiction in which it was created. D. Except as provided in section 28-370, an adult, known as the principal, may designate another adult, known as the agent, to make financial decisions on the principal's behalf by executing a written power of attorney that satisfies all of the following requirements: 1. Contains language that clearly indicates that the principal intends to create a power of attorney and clearly identifies the agent. 2. Is signed or marked by the principal or signed in the principal's name by some other individual in the principal's conscious presence and at the principal's direction. 3. Is witnessed by a person other than the agent, the agent's spouse, the agent's children or the notary public. 4. Is executed and attested by its acknowledgment by the principal and by an affidavit of the witness before a notary public and evidenced by the notary public's certificate, under official seal, in substantially the following form: I, __________, the principal, sign my name to this power of attorney this _____ day of __________ and, being first duly sworn, do declare to the undersigned authority that I sign and execute this instrument as my power of attorney and that I sign it willingly, or willingly direct another to sign for me, that I execute it as my free and voluntary act for the purposes expressed in the power of attorney and that I am eighteen years of age or older, of sound mind and under no constraint or undue influence. ______________________ Principal I, __________, the witness, sign my name to the foregoing power of attorney being first duly sworn and do declare to the undersigned authority that the principal signs and executes this instrument as the principal's power of attorney and that the principal signs it willingly, or willingly directs another to sign for the principal, and that I, in the presence and hearing of the principal, sign this power of attorney as witness to the principal's signing and that to the best of my knowledge the principal is eighteen years of age or older, of sound mind and under no constraint or undue influence. ____________________ Witness The state of ______________ County of _________________ Subscribed, sworn to and acknowledged before me by __________, the principal, and subscribed and sworn to before me by __________, witness, this _____ day of ____________. (seal) (signed) _____________________ ______________________________ (notary public) E. The execution requirements for the creation of a power of attorney provided in subsection D of this section do not apply if the principal creating the power of attorney is: 1. A person other than a natural person. 2. Any person, if the power of attorney to be created is a power coupled with an interest. For the purposes of this paragraph, "power coupled with an interest" means a power that forms a part of a contract and is security for money or for the performance of a valuable act. F. A person whose license as a fiduciary has been suspended or revoked pursuant to section 14-5651 may not serve as an agent under a power of attorney in any capacity unless the person is related to the principal by blood, adoption or marriage. This prohibition does not apply if the person's license has been reinstated and is in good standing.