Instrument: Power of Attorney (POA)

What is it for?
The “power of attorney” (POA) allows an adult (the “principal”) to authorize another person (the “agent”) to make decisions concerning the principal’s property.

What does it do?
The POA empowers the agent to make decisions and act with respect to the principal’s property whether or not the principal is able to act for themself. The agent is granted authority over a broad range of matters, unless the POA expressly limits the agent’s authority. Ark. Code Ann. § 28-68-102.

A POA is presumed to be “durable,” meaning that it remains in effect after the principal’s incapacity, unless otherwise stated in the POA document. Ark. Code Ann. § 28-68-104.

In making decisions for the principal, the agent must act in good faith, only within the scope of the authority granted in the POA, and in accordance with the principal’s known expectations and in the principal’s best interest. Ark. Code Ann. § 28-68-114.

Third parties must generally accept decisions made by the agent as if the principal had made them. They may, however, request the agent for a certification of the POA’s validity. Ark. Code Ann. § 28-68-120.

How does one make it?
A POA must be written, signed by the principal or in the principal’s conscious presence by another, and acknowledged by a notary public. Ark. Code Ann. § 28-68-105.

A principal may, but is not required to, utilize a statutory form to execute a POA. If the principal does not choose to use the statutory POA, however, their POA document must be substantially similar to the statutory POA. Ark. Code Ann. § 28-68-301.

When does it come into effect?
A POA can state that the agent’s authority begins either immediately upon execution, at a future date, or upon the occurrence of a future event, such as the principal’s incapacity. Ark. Code Ann. § 28-68-109(a).

If a POA becomes effective upon a future date, occurrence, or event, the principal may designate one or more persons to determine that the future date, occurrence, or event has occurred in writing. Absent a designation of who will determine the principal’s incapacity, this determination may be made by a physician or licensed psychologist who has evaluated the principal. Ark. Code Ann. § 28-68-109(c).

For the purpose of this determination, “incapacity” means the principal is unable to manage their property or business affairs for two main reasons due to an impairment in the ability to receive and evaluate information or make or communicate decisions even with the use of technological assistance. Ark. Code Ann. § 28-68-102(5)(A).

How long does it last?
A POA lasts until the principal or agent dies or becomes incapacitated (if the POA is not durable); the principal revokes the POA; the POA provides that it terminates upon some future date or event; the purpose of the POA is accomplished; or the agent’s authority is revoked by a court. Ark. Code Ann. § 28-68-110.

How does one end it?
A principal may revoke a POA by either substantially complying with a method specified in the POA itself or by any method manifesting clear and convincing evidence of the principal’s intent to revoke the POA. Ark. Code Ann. § 28-68-110.

What does an example look like?
A sample POA form is available at Ark. Code Ann. § 28-68-301. Arkansas Legal Help also provides a fillable form here.

What else should one know?
Arkansas’ POA is based on the Uniform Power of Attorney Act.

Updated July 2022

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