Bench & Bar

JUL 2018

The Bench & Bar magazine is published to provide members of the KBA with information that will increase their knowledge of the law, improve the practice of law, and assist in improving the quality of legal services for the citizenry.

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27 BENCH & BAR | ENDNOTES 1. Power of Attorney Summary, e National Conference of Commissioners on Uniform State Laws, (http://www.uniformlaws.org/ActSummary.aspx?ti- tle=Power%20of%20Attorney), last updated 2018). 2. 18 RS House Bill 11, Section 6. 3. Id. at Section 5. 4. Id. at Section 8 and Section 10. 5. Id. at Section 6. 6. Id. at Section 11(1). 7. Carolyn L. Kenton, Amy E. Dougherty, Robert L. McClelland, Monica M. McFarlin, Kentucky Powers of Attorney: A Necessary Planning Tool for End of Life, Bench & Bar (May 2013). 8. Id. 9. Note 2, supra at Section 14(1-2). 10. Id. at Section 14 (2)(d). 11. Id. at Section 14(2)e) 12. Id. at Section 14(2)(f ). 13. Id. at Section 14(3). 14. Id. at Section 14(5). 15. Id. at Section 14(7). 16. Id. 17. Id. at Section 14(4). 18. Id. at Section 13 19. Id. at Section 10(2). 20. Id. 21. Id. at Section 11(4). 22. Id. 23. e General Assembly also made updates to the Guardianship statute, subject to further revision through House Bill 5. 24. Id. at Section 16(1). 25. Id. at Section 17 (1&2). 26. Id. at Section 19(2). 27. Id. at Section 19(3). 28. Id. at Section 19(4). 29. Id. at Section 19(5). 30. Id. 31. Id. at Section 20(1)(b). 32. Id. at Section 20(1)(c). 33. Id. at Section 20(2). ABOUT THE AUTHOR Growing up in Lexington, S A R A JOHNSTON has an affinity towards helping Kentucky businesses and res- idents – especially when in a time of financial or emotional distress. Johnston provides legal solutions for the long term success of her clients. rough prudent and future-looking estate plan- ning and asset preservation, she helps families maintain, protect, and preserve the home and other assets so that individuals may preserve their legacy. She also enjoys practicing in a different area of asset preserva- tion involving consumer and corporate bankruptcies. rough a combination of financial restructuring, workouts, liquidation or utilizing exemptions and other preservation techniques, Johnston works through the bankruptcy process with her debtor and cred- itor clients from start to finish. Johnston is the chair of the Kentucky Bar Association's Elder Law Section's Legislative Sub-Committee, a member of the American Bankruptcy Institute, ElderCounsel, National Academy of Elder Law Attorneys, and an accredited attorney by the Department of Veterans Affairs. If a person is asked to accept a power of attorney, they may request: an agents certification under penalty of perjury of any related factual matter; an English translation; and an opinion of counsel as to any matter of law concerning the power of attorney. 28 If an English translation or an opinion of counsel is requested, this must be pro- vided at the principal's expense unless the request is made more than seven business days after the power of attorney is presented for acceptance. 29 If an apparently valid power of attorney is presented to a third party, the third party has four choices. e third party can accept it. If the power of attorney is in another language, the third party can request a translation. e third party can request an opinion of counsel. e third party can request a certification of the power in question. e third party must advise the agent that the third party is pur- suing these options within seven days of the presentation of the instrument. 30 If neither a certification, translation, nor opinion of counsel is requested, the person shall accept the power of attorney no later than five business days after presentation. 31 A third party may not require additional or different forms of a power of attorney for authority granted in the power of attorney presented. 32 A person is not always required to accept an acknowledged power of attorney. If the acceptance of the power of attorney is inconsistent with federal law, the person has actual knowledge of terminated agent authority, a request for a certification, translation or opinion is refused, or the person believes in good faith the power is not valid, the person may refuse the power of attorney. 33 Similarly, if the person makes or has actual knowledge that another person has made a report to the Cabinet for Health and Family Services stating a good faith belief that the principal may be subject to financial or physical abuse, neglect or exploitation, the person may refuse the power of attorney. For the first time in Kentucky, there are statutory consequences to anyone who refuses a power of attorney in violation of Section 20. e statute authorizes a judge to order an acceptance of a power of attorney and to order payment of costs and attorney's fees when acceptance of a POA has been unlawfully withheld. CONCLUSION is statute encourages acceptance of powers of attorney by third persons, safeguards the incapacitated, and provides much clearer guidelines for agents to follow. e statute provides broad protection for good faith acceptance or refusal of acknowledged powers of attor- ney and consequences for unreasonable refusals. e statute aims for a balance between requirements and safeguards amount principals, agents, and third par ties pre - sented with powers of attorney.

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