Hawaii

Finance

Instrument: Power of Attorney (POA)

What is it for?
The “power of attorney” (POA) grants an individual (the “principal”) the authority to grant another person (the “agent”) to make decisions concerning the principal’s property on the principal’s behalf.

What does it do?
The POA empowers the agent to be able to make decisions and act with respect to the principal’s property. Unless the POA expressly limits the agent’s authority, the agent is granted authority over a broad range of matters, including managing the principal’s money, receiving government benefits, entering into contracts, and pursuing legal claims. Haw. Rev. Stat. Ann. § 551E-31. The agent’s authority does not extend to the power to make health care decisions. Haw. Rev. Stat. Ann. § 551E-2.

Unless a POA expressly states otherwise, a POA is considered to be “durable,” which means the agent’s authority continues during a period when the principal lacks capacity. Haw. Rev. Stat. Ann. § 551E-3(a).

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. Haw. Rev. Stat. Ann. § 551E-10.

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 prior to relying on the agent’s authority. Haw. Rev. Stat. Ann. § 551E-16.

How does one make it?
The POA must be signed by the principal or in the principal’s conscious presence by another individual directed by the principal to sign the principal’s name, and it must be notarized. Haw. Rev. Stat. Ann. § 551E-3(b).

When does it come into effect?
The power of attorney becomes effective immediately upon execution unless the instrument states that it becomes effective at a future date, when the principal becomes incapacitated, or upon the occurrence of future event. Haw. Rev. Stat. Ann. § 551E-5 (West)

If a power of attorney becomes effective upon a future date, occurrence, or event, a principal may designate one or more persons to determine that the future date, occurrence, or event has occurred in writing. Haw. Rev. Stat. Ann. § 551E-5 (b).

If a power of attorney becomes effective upon the principal’s incapacity and the principal has not authorized a person to determine whether the principal is incapacitated, or the person authorized is unable or unwilling to make the determination, the power of attorney becomes effective upon a determination in a writing or other record by one of two means.

First, the determination of incapacity must be made by a physician if the principal has an impairment in their ability to receive and evaluate information or make or communicate decisions even with the use of technological assistance. Haw. Rev. Stat. Ann. § 551E-5 (c)(1).

Second, the determination of incapacity must be made by an attorney at law, a judge, or an appropriate governmental official if the principal is missing or disappeared; detained; or outside the United States and unable to return. Haw. Rev. Stat. Ann. § 551E-5 (c)(ii).

The 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. Haw. Rev. Stat. Ann. § 551E-5

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. If the future occurrence is the principal’s incapacity, then that determination will be made by a physician or licensed psychologist who has evaluated the principal, unless the POA states otherwise. Haw. Rev. Stat. Ann. § 551E-5(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. Haw. Rev. Stat. Ann. § 551E-1.

How long does it last?
The POA generally lasts until the principal or agent dies; 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. Haw. Rev. Stat. Ann. § 551E-6.

How does one end it?
Presumably, the principal may revoke the POA at any time by either destroying the POA and notifying the agent or by another method that communicates the principal’s intent to revoke.

What does an example look like?
A statutory POA form is available at Haw. Rev. Stat. Ann. § 551E-51. An agent’s certification form is provided at Haw. Rev. Stat. Ann. § 551E-52.

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

Last Updated November 2022

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