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webinar offered by the fidelity national title insurance group i'm lisa lu gauss kiss of the fidelity national title group and I'll be introducing our presenter at rosenblatt in just a few minutes first a few housekeeping details you'll all be in listen-only mode during the webinar because we have a very large audience today if you have any questions throughout the presentation please type them in a question section of the toolbar it's on the right hand side of your screen will answer questions throughout the presentation as well as at the very end of the presentation but again we do have a very large group today so the number of questions our speaker will be able to address will be limited we hope to complete the webinar right on time at eleven-thirty and now i'll introduce our speaker attorney Ed Rosenblatt it is a vice president and counsel at the fidelity national title insurance group he has extensive private practice experience as well as title insurance experience he was a past chair of the executive committee of the real property section of the Connecticut Bar Association and he's been on the executive committee since 1987 it is currently the chair of the residential real estate certification committee and co-chair of the sections legislative committee he's a frequent lecturer on real estate and title matters and let's begin good morning everyone this is at rosenblatt welcome to all of you to our webinar on the Connecticut uniform power of attorney Act I'd like to get started and moves through the material rather quickly this is a very extensive act that makes lots of important changes to how we will work with powers of attorney starting on its effective date which is coming up on october first so because this is only a one-hour webinar it will be impossible for me to cover every important point in every change that this act makes but i will hit on the most important points and the most important things that you need to know as Lisa graciously pointed out you will be able to type in questions on your control panel which you should see on your screen at this point but because there are so many participants at this moment there are more than a hundred thirty people signed on to this webinar and we expect more over the next few minutes it will probably be impossible for me to answer every question that get that so I'll try my best to hit most of them and give you as much information as I can and of course I'll be available after the webinar to discuss any other issues that you might have so let's get started we are going to talk about the new Act which was created really by two acts of our legislature the first was the enactment and the adoption of the uniform power of attorney Act and then that was by Public Act 15 to 40 and then a second act made revisions to the initial act and that was at Public Act 1640 and as revised this act is now contained in the 2016 supplement to the Connecticut general statute and will be located at section one dash 350 and following of our Connecticut General Statutes as I mentioned the effective date is October first 2016 so this will apply to all powers of attorney that are executed on or after that date we're going to be talking a little bit today about the content of the statute and also the two forms that the statute recommends a the new long form and the new short form power of attorney and I'll talk a little bit about the difference between them all of you who are attending this webinar today will receive by email copies of these forms together with a couple of other useful forms and together with a copy of the PowerPoint presentation that you're watching today in addition to that this presentation will be recorded and will be available for later view and we'll be sending you all links to where you can see the recording on the website again this new act is contained now in the 2016 supplement to the Connecticut General Statutes it has not yet been published in the normal full statute books so you won't find them there yet this next page is simply an index of where some of the important provisions of the Act are located and you can use this slide as a reference but it's primarily at section 13 50 and following statutes a few general provisions first there's a new definition this new Act no longer refers to attorneys in fact but rather agents so someone is no longer as of October first appointed to be an attorney in fact they are appointed to be the agent of the principal and we're going to use the word agent from now on instead of attorney in fact how about applicability the new Act applies to all powers of attorney except for the ones you see on this list powers to creditors those are the kind of powers that are normally contained in both consumer and commercial loan documents healthcare decisions a proxy for an entity of a business entity such a corpus as a corporation or an LLC and governmental and military forms of powers those are all accepted from the provisions of the new Act the new Act applies to powers executed before on or after October first 2016 it does not mean that powers executed before october first are no longer in any effect or that the new forms must be used on or after october first any power that's executed prior to october first is still valid and still will be recognized under law and the new act as long as it was validly executed under the current law at the time of its execution this is a very important change in the act under current power of attorney law powers must state that they are durable in order to be durable in order to survive the incapacity of the principal under the new act making a statement of durability is no longer required every power of attorney executed on or after october first is deemed to be a durable power of attorney unless it explicitly states that it will terminate upon the incapacity of the principal so if you want a power not to be durable you must explicitly state so if your power will be executed on or after october first that is an important reversal of existing law the method of execution of powers is also affected by the new act first as always powers must be signed by the principal and dated but the new Act provides that the power may actually be executed by a person other than the principal it may be signed by another person executed in the presence of the principal and directed to be signed on behalf of the principal so that means that a person who is physically disabled but would like to appoint a person to be their agent may direct another person to execute the power on their behalf notice the slide states except for real estate there are several provisions of the Act civil permissive provisions that will not apply to powers that are to be used for real estate transactions and I will summarize those later in the presentation powers as before must be witnessed by two witnesses if executed in Connecticut that's not a change in the law but one other important change in the law is that acknowledgments are no longer required for powers of attorney notice again as an exception for powers executed for use in real estate transactions so an unacknowledged power of attorney is still valid in Connecticut if executed after October first there is a presumption of validity if there is an acknowledgement so you take a little bit of a risk by having a power without an acknowledgement but if it does not have an automatic presumption of validity but it is not rendered invalid by the failure to contain an acknowledgement third parties are required to accept powers that are executed even though they may not be acknowledged and we're going to get into a little bit more detail on the third party requirements third party acceptance requirements of powers as we go through the slides I tried on the slides to refer to specific provisions of the new Act that deal with the issues that I'm mentioning so the execution provisions of the new Act are contained in section one dash 350 be a power of attorney may designate the governing law therefore a power executed in Connecticut may designate that it is intended to be interpreted under the law of a different jurisdiction so a person who has assets or other property in other states who wishes that to be disposed of or dealt with under the law of another state may so designate in the power if no designation is made in the power then the law of the state in which the power is executed will prevail another new provision of the Act commits the designation of a conservator for future incapacity that means that the power may state a designated conservation cipal wishes to have named in the event that there is an incapacity in the future and that designation except for within the power will be recognized by courts unless the person is designated is either unable or unwilling to serve or there is evidence provided of their inability to qualify or that they have performed some bad act or that there's some reasons that they should not be qualified and I see a question posted here I'm having a hard time reading it right now so I will get to that later on let's go to the next slide when a conservator is appointed or designated the power of attorney is not necessarily terminated by the appointment of a concentrator that's another important change in this act that at the time of incapacity a judge must make a ruling as to whether the power will continue will terminate will be temporarily suspended or will be limited to certain powers so it's altogether possible for powers that are executed on or after October first that there will be both an agent formerly known as attorney-in-fact and a conservator with powers simultaneously that's going to be up to the judge to make that decision and the judge will be bound if the judge is made aware of the fact that there is a power of attorney in effect a ruling as to whether that power of attorney will be terminated will continue in full force will be suspended or will be limited in the event that the power of attorney is permitted by the court to continue in any capacity then the agent is at odds they've accountable to both the principal and the conservation and if the court orders anything other than a complete termination of the power at the time of the capacity the power will be automatically reinstated to full effect if and when the principle is restored to full capacity that is set forth in section 3 50 G of the statues another change or is that the power of attorney is not impacted or voided due to the passage of time now under existing law prior to october first there is no statement in the statute about the length of time of the validity of a power but the new Act specifically states that the passage of time does not impact or void a power due to its age what does terminate a power are the factors that you can see on this screen the desk or of the principal or the principal revocation of the power the death of the agent or the incapacity or resignation of the agent when there is no successor provided and as I specified earlier a court order of termination under 13 50 G that is if the if the principal is found to be incompetent and the court orders extermination another change a subsequent power of attorney does not automatically revoke an earlier power unless the subsequent power specifically provides so therefore the appointment of a second agent by a second document would create a situation in which both of the named agents are remain agents and both of their powers remain in effect so a good practice maybe when writing a power of attorney for a client that it contains a provision revoking our powers and jump in with a question from Jessica sure her question was if a third party signs at the direction of the principal do they sign the principal's name by that person or do they sign their own name the statute does not answer that question but I I presume in reading the statute that the person would sign their own name as instructed by the principal and of course if the power is going to be acknowledged then this is going to change the way the acknowledgement reads as well because the person who will be giving the acknowledgement will be the person signing the power not the principal so there's no statutory provision for the language that must be set forth in the acknowledgement when a designated other person execute the power but I imagine and I expect that the acknowledgement will be something to the effect of personally appeared before me John Smith who signed this power of attorney on behalf of william jones at his or her direction and acknowledge the same to be here free act indeed and the free act indeed of the principal it's going to be something like that but we don't really know because the statute does not provide what an acknowledgement will look like under those circumstances the statute also provide for relief for those aggrieved by the act of an agent the first is an accounting which is existing law in section 45 a 175 that section has not changed but the new Act provides its own provisions for relief which would include asking a court to construe the terms of a power asking a court to review the agents conduct and in the event that the court deems the agent to have acted inappropriately or be guilty of misconduct to grant appropriate relief let's talk about the acknowledgement issue again first acknowledgement as I mentioned before are not required in order for a power to be valid second there is a presumption of genuineness of a principal signature even without an acknowledgement a third-party accepting and unacknowledged power may rely upon it in good faith however a third-party will have the right to ask for additional substantiation of the validity of the power first the third party may request the agent to certify as to any factual matter concerning the power second if the power is not written in English they may request an English translation before being obligated to accept the power third a third party may request the opinion of counsel as to any matter of law pertaining to the power these are all things that a third party may request before being bound to accept the power that request must be made within seven days of being presented with the power if seven days pass and none of those items of substantiation are requested then the third party will be bound to accept the power the third party may not require that a different form of power be utilized before accepting it what under what circumstances may third party refuse to accept a power first if a request made within that seven-day period is refused or not honored second is the third party in good faith believes that the power is not legally valid for some reason or that there is no authority for it that cannot be done simply because there's no acknowledgment or if the third party has actual knowledge of a complaint on file by the Department of Social Services in the event of the dispute as to the acceptability of a power the probate court or the Superior Court may order acceptance and if a party a third party challenges the validity and it does go before the probate court or the Superior Court the prevailing party in that action may be entitled to attorneys fees and costs and this puts a strong incentive in place for the acceptance of powers because the refusal to accept the power may result in a probate court or Superior Court legal action which could result in both in order to accept and in order to pay attorneys fees and costs another change from existing law is that the current Act states that a photocopy of a power must be accepted just as well as an original power this is another exception for when real estate when the power is used for real estate transactions because under Connecticut law only original documents may be recorded and the requirement for recording powers remains in effect and excuse me a moment another question may be a little out of order and i'm sure you'll address it later but just to jump in luath is a power utilizing the form under the new Act valid if executed prior to October first so the answer to that is there is no reason to believe that using the new form prior to October first will invalidate the power however since the new Act goes into effect on October first a power executed prior to October first regardless of what form is used will not be valid without an acknowledgement and will not be valid unless it's actually signed by the principal those two provisions take effect on October first and prior law will control them if the power is executed prior to October first so the form itself will not necessarily be invalid or unacceptable but the provisions of law dealing with execution apply depending on the date of execution so powers I executed prior to October first must be acknowledged and must be actually executed by the principal regardless of which form is used under the new Act there are two sets of powers that can be allocated to an agent the first are known as standard powers and those are the same kind of powers that we have typically seen in our powers of attorney up to this point they may be incorporated by reference in the power rather than specifically listed so that a power of attorney may by reference to the statute sections 351c to 351 p may incorporate all of those standard powers without enumerated them separately those include the normal kind of powers that we've seen in powers of attorney prior to adoption of this act including by example powers to do real estate transactions powers to deal with stocks and bonds powers to deal with banks and other financial institutions but there are some powers that are known as the hot powers that's the second group of powers they've been referred to as hot powers those powers cannot be incorporated in the power of attorney by statutory reference but must be expressly granted in the instrument and those include the creation or amendment or revocation of a trust the making of any gift the change of a beneficiary designation and the disclaimer of property unless those powers are expressly granted in the instrument the agent will not have those powers and unlike the current form of power where powers must be crossed off in order not to have them or initial the hot powers must be initialed in the form of the power that's executed in order to grant them to the agent there are two forms of powers that are set forth in the act the short form and the long form the main difference between those two forms is that hot powers the powers that must be specifically granted and designated in the power are not set forth in the short form they are only set forth in the long form so if you're preparing a power for a client and you want to include any of the hot powers that are set forth in the new Act you will need to use the long form and if you use the short form you will not have those powers granted to the agent keep in mind that the two forms that are set forth in the statute the short form and the long form are only recommendations the act is not bar the use of other forms and the Act specifically states in Section 1 352 that it does not bar the use of other forms so you are free to custom make your own form note that both of the recommended forms the long and short form contain eggnog knowledge in them even though the acknowledgement of a power is not required ed we have another question does the opinion of counsel have to be someone other than the attorney who took the acknowledgement and before you answer that for those of you who jumped onto this webinar a little bit later if you have questions go ahead and type them into the right of your screen and we'll try to answer as many as possible but it is a large audience so we can only address some a few not so as much as all of them okay right so about the original environment there is no requirement in the act that the attorney who took an acknowledgement were acted as a witness even in a power of being disqualified from giving an opinion on that power so it need not be a different attorney I see another question here asking can third parties in another state refused to accept the new power or is this a more uniform national power of attorney the answer to that is a little bit complicated because this is a Connecticut act and the jurisdiction of this act is limited to Connecticut so I can't see how a search party in another state would be bound to accept a power that complies with this act unfortunately it's not that simple though because what we have adopted in Connecticut is a uniform act which means that there are quite a number of other states I believe over 20 at this point that have adopted this uniform act of course each with slightly modified provisions just as Connecticut has already made some modifications to the provisions of the Act here in Connecticut I'm sure that the other states that as adopted of the Act have made their own modifications to it nevertheless it is a uniform act so I would suppose that in another state which has adopted the act that third parties in those states would be required to accept powers just as third party in Connecticut would be under the same rules that third parties in Connecticut would be required to accept powers in Connecticut because the statutory provision in that state would be the same let's talk that about designation of more than one agent in a power executed honor after October first a principal may designate more than one agent just as a principal may do that prior to the effective date of the new act however there is a provision in the act that states that the power of co agents is deemed to be joint rather than several unless the power designates otherwise therefore if you see a power of attorney executed after October first in Connecticut and it names more than one agents and does not state that their power is several you must get the signatures of all the agents in order to have an effective document the Act states that they are jointly powered rather than severally powered unless this specific power designates otherwise as is also an effective under current law a principal may designate a successor in the event of the resignation incapacity or death of a primary agent the Act also states that Co agents are not liable for each other's backs but it does impose an affirmative duty on any co agent to inform the principal of any wrongdoing by a co agent if they have actual knowledge of wrongdoing that's an affirmative duty that this new Act imposes on coal ages sections 350 T of the Act states the principles of law and equity supplement the new Act that means that in deciding cases and controversies concerning powers that are executed after October first general principles of law and equity will give judges very broad discretion so it takes this act out of the realm of strict construction because of this provision that gives courts the right to apply general principles of law and equity in their decision-making on these powers back discussion of hot powers these are the powers that agents may have if they are specifically granted in the powers and remember the short form will not contain them and this is a partial list of some of the hot powers that the Act provides creating amending and revoking or terminating a trust making a gift creating or changing rights of survivorship creating or changing beneficiaries the right of an agent to delegate authority the waiver of the right to be a beneficiary and the exercise of fiduciary powers that a principal already has the right to delegate and the disclaimer of property including a power of appointment these are all hot powers which must be specifically granted in order to delegate them to an agent under any power executed after October 1st ed I know you mentioned that the Act specifically states that the hot powers must be contained in the long form rather than the short form but we have a question that asks can I designate hot powers within this special provision section of the short form without having them initialed you can designate hot powers in any form by adding them into the form you use but not without having them initials a hot power must be initial in order to have effect no matter what form you use so you can start with the short form that doesn't set forth any of the hot powers by default and you can add hot powers to it but they will still require initially can the hot power is ed be initialed by the principal's designee I think you mentioned that a principal can designate someone to sign the actual power of attorney do you think the hot powers if that authority is given to someone else to sign the power do you think that party can also initial the hot powers in a long for that's an excellent question but it is not specifically addressed in the act I would presume that if the Act authorizes a principal to designate a signer it could also permit a principal to designate an initial er it just seems to make logical sense but that may end up being one of the provisions that gets decided by a court or in a revision a later revision or amendment to the Act and I think that we've seen and we will see a number of things in this act that may get resolved by future amendment to the Act section 1 thrist 351 makes another important change it states that unless the power specifically provides an agent other than a family member and a defined family member as a spouse a ancestor or a defendant notice that does not include siblings and a spouse an ancestor or a defendant may not exercise authority to create an interest in the agent in any of the that are listed here so under current law a power of attorney or a a an attorney in fact rather now known as an agent but under current law an attorney and the fact may not give him or herself a gift unless specifically authorized this section restricts that only to non-family members therefore there is no prohibition against a parent an ancestor or a defendant or a spouse to give him or herself a gift because they constitute a family member so this broadens the ability of an agent to give him or herself a gift without special designation in the power the only time you need special provision in the power for a gift is if the agent is not a family member and this seems really strange to me because most of the cases that we've seen in which gifts have been given by an agent or an attorney in fact of humor herself occur when the agent is already a family member so unsuspecting that this may be one of those provisions that is ripe for amendment the next time the legislature looks at this act but as a dove October first if the agent is an ancestor a defendant or asset or a spouse of the principal there is no prohibition against self gifting important to keep in mind three areas in which the some of the changes that we've seen in this act will not apply to powers that are utilized for real estate transactions first and unacknowledged power will not be accepted for use in real estate transactions because Connecticut law requires documents utilized for the transfer of interests in real estate to be acknowledged second although the new Act provides that a copy is as good as an original an original power must be submitted for recordation in order to be used for a real estate transaction that again also because Connecticut law requires that original documents be recorded and third the provision about designating a third party to execute a document will not be accepted for powers that are used for real estate transactions again because Connecticut law requires the documents used to convey interest in real estate must be executed by the party conveying that interest and not by a designee so these are three areas where if you're dealing with a real estate transaction the new the provisions of the new Act will not apply acknowledgement original and execution by the principal and a quick question that probably calls for your opinion from emily i'm talking about acknowledgement for a power of attorney executed prior to october first those agents you know were referred to as attorneys in fact if that power of attorney was executed prior to october first that attorney-in-fact continue signing as attorney-in-fact or should they begin to sign as agent I think that's more or less a semantic term but for a power of attorney executed prior to act / first but in fact designates the person add their attorney in fact and therefore I would continue to use the designation of attorney in fact for powers executed prior to october first what happens and this is sort of a follow-up question what happens if a power of attorney executed after October first designates the agent as an attorney in fact rather than an agent I don't think that will invalidate the power and I think that power is executed after October first may designate either an agent or an attorney in fact but when it comes time for a legal interpretation of that power then the person will be referred to as an agent that makes sense I think so yes yes the general authority was real property unless the power provides otherwise when a power executed after October first authorizes an agent to have authority for real property that power Also Rises the agent to do all of the things that are enumerated here to demand by lease receive acceptance and a gift any interest or right in real property to sell exchange convey lease or option simply to pledge or mortgage an interest in property or to borrow pay or renew a debt secured by real property or to release a sign pay off a mortgage enter into a contract lien or other claim against real estate so you can see that by designating authority to deal with real property and this is not one of the hot powers this is one of the standard powers that can be incorporated by reference the need not be but it may be incorporated by reference that will give to the agent very broad powers in dealing with real estate interests and this is not a substantial change from current law what about existing powers power is executed prior to October first will continue to be valid if that power complied with the law effective at the time of the execution which means essentially that it must be executed by the principal and not by a designated person and must be acknowledged the power of attorney for health care is effective executed prior to October first as long as it's properly executed remember we discussed at the beginning of this session that the new act exempts health care powers from its provisions and therefore we must look to other statutes for health care proxies and health care agents and powers of attorney but a power executed prior to October first can still deal with health care decisions and that the end of our presentation we have a few minutes left if there are any additional questions I'm looking at the type in the things and I'm going to try and see if I missed any that I can see here there's an interesting question ed regarding powers of attorney signed under the old Act if there is a power of attorney executed prior to october one and it's a springing power of attorney and what if that springing event occurs after october one is that old POA still valid it's the springing event the date of the springing event is not the controlling date the controlling date is the date of execution of the power so that any power executed prior to october first if that power is validly executed pursuant to pre october first law that its provisions will continue to be valid regardless of when the swinging date is another question that was just typed in how do you know when you can rely on the subsequent agent how do you know that the primary agent no longer has authority does that primary agent need to resign or be removed the power of the primary agent goes away under the new law upon either the agents death the agents in capacity the agents resignation or the agents removal by a court of law and that is one of the things that a third party may request information on prior to accepting the power so that if you are a third party and you're presented with a power executed after October first and the agent is a successor agent you have that seven-day period to request information or even an opinion of counsel as to the validity of that power which would include the right of the successor agents to act did you see any other questions I don't see any other unanswered questions at this point so I'll just remind people that this presentation is being recorded and will be available for later viewing listening and use and that if you have registered for this pres ntation you will receive by email a copy of the PowerPoint presentation that you've seen together with copies of several forms that are incorporated in the statute including a copy of both the short form and the long form powers and the copies you receive from us will be in word format so you can use them after October first in your practice and do you have anything else that I think that brings us to a close so let me think I understood everyone who'd attended we appreciate your giving your time to this as you can see many of the changes of the Act will make the construction and the drafting of powers a different art than it has been up to now and if any of anyone has any continuing issues or questions we are available to answer them for you so get in touch with us okay thanks it and thanks everyone for listening in will be having future webinars on legal topics and title insurance topics and we hope you sign into those as well everyone have a great stay a fall