BILL NUMBER: AB 1082 INTRODUCED
BILL TEXT
INTRODUCED BY Assembly Member Gatto
FEBRUARY 18, 2011
An act to amend Sections 4260, 4264, 4401, 4407, 4457, 4458, 4460,
4461, and 4462 of, and to repeal and add Section 4465 of, the
Probate Code, relating to powers of attorney.
LEGISLATIVE COUNSEL'S DIGEST
AB 1082, as introduced, Gatto. Powers of attorney: statutory form
power of attorney.
Existing law, the Power of Attorney Law, sets forth the authority
of an attorney-in-fact, defined as a person who is granted authority
to act for the principal in a power of attorney. Under existing law,
the attorney-in-fact may be granted general authority to act on
behalf of the principal and authority to act by incorporating powers
by reference to other laws. Existing law requires express authority
in the power of attorney in order for an attorney-in-fact to take
specified actions, including creating, modifying, or revoking a trust
and exercising the right to make a disclaimer on behalf of the
principal. Other provisions of existing law, the Uniform Statutory
Form Power of Attorney Act, set forth a form in which the principal
designates the category of powers granted to the agent pursuant to
the power of attorney, referred to as a statutory form power of
attorney, and defines the extent of the powers so conferred on the
agent. Under existing law, the provisions setting forth the authority
of an attorney-in-fact are inapplicable to a statutory form power of
attorney.
This bill would, instead, apply the attorney-in-fact provisions to
a statutory form power of attorney, except for those providing to
the attorney-in-fact general authority and powers by reference to
other laws. The bill would revise certain powers that require express
authority in the power of attorney for their exercise by the
attorney-in-fact, specifying that an attorney-in-fact may modify,
revoke, or terminate a trust in whole or in part but only as provided
in the trust instrument and that the attorney-in-fact may reject,
disclaim, release, or consent to a reduction or modification of a
share in, or payment from, an estate, trust, or other fund. The bill
would also revise the statutory form power of attorney to notify the
principal that it does not include all of the powers available under
law for an attorney-in-fact and would revise the agent's power under
a statutory form power of attorney with regard to insurance, annuity,
and retirement plan transactions and estate, trust, and other
beneficiary transactions. The bill would specify that the power of an
agent under a statutory form power of attorney with respect to
personal and family maintenance is not dependent on any other
authority to make gifts on the principal's behalf and is not limited
by any other limitation applicable to the agent's authority to make
gifts on the principal's behalf.
Vote: majority. Appropriation: no. Fiscal committee: no.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 4260 of the Probate Code is amended to read:
4260. This (a)
Except as specified in subdivision (b), this article
does not apply to applies to all
statutory form powers of attorney under this
division.
(b) Sections 4261 and 4263 do not apply
to the provisions of Part 3 (commencing with Section 4400).
SEC. 2. Section 4264 of the Probate Code is amended to read:
4264. A An attorney-in-fact under a
power of attorney may not be construed to grant authority
to an attorney-in-fact to perform any of the following acts
unless on behalf of the principal or with
the property of the principal only if the power of attorney
expressly authorized in the power of attorney
grants that authority to the attorney-in-fact :
(a) Create, modify, or revoke , or
terminate a trust , in whole or in part. If a power of
attorney under this division empowers the attorney-in-fact
to modify or revoke a trust created by the principal, the trust may
be modified or revoked by the attorney-in-fact only as provided in
the trust instrument .
(b) Fund with the principal's property a trust not created by the
principal or a person authorized to create a trust on behalf of the
principal.
(c) Make or revoke a gift of the principal's property in trust or
otherwise.
(d) Exercise the right to make a disclaimer
reject, disclaim, release, or consent to a reduct ion
in, or modification of, a share in, or payment from, an estate,
trust, or other fund on behalf of the principal. This
subdivision does not limit the attorney-in-fact's authority to
disclaim a detrimental transfer to the principal with the approval of
the court.
(e) Create or change survivorship interests in the principal's
property or in property in which the principal may have an interest.
(f) Designate or change the designation of beneficiaries to
receive any property, benefit, or contract right on the principal's
death.
(g) Make a loan to the attorney-in-fact.
SEC. 3. Section 4401 of the Probate Code is amended to read:
4401. The following statutory form power of attorney is legally
sufficient when the requirements of Section 4402 are satisfied:
GRAPHIC INSERT HERE: SEE PRINTED VERSION OF THE BILL]
SEC. 4. Section 4407 of the Probate Code is amended to read:
4407. Unless The provisions of this
division apply to a statutory form power of attorney except when
there is a conflicting provision in this part, in which case
the provision of this part governs, the other provisions
or when a provision of this division
apply is expressly made inapplicable to a
statutory form power of attorney.
SEC. 5. Section 4457 of the Probate Code is amended to read:
4457. In a statutory form power of attorney, the language
granting power with respect to insurance and annuity transactions
empowers the agent to do all of the following:
(a) Continue, pay the premium or assessment on, modify, rescind,
release, or terminate a contract procured by or on behalf of the
principal which that insures or
provides an annuity to either the principal or another person,
whether or not the principal is a beneficiary under the contract.
(b) Procure new, different, and additional contracts of insurance
and annuities for the principal and the principal's spouse, children,
and other dependents, and select the amount, type of insurance or
annuity, and mode of payment.
(c) Pay the premium or assessment on, modify, rescind, release, or
terminate a contract of insurance or annuity procured by the agent.
(d) Designate the beneficiary of the contract, but the agent may
be named a beneficiary of the contract, or an extension, renewal, or
substitute for it, only to the extent the agent was named as a
beneficiary under a contract procured by the principal before
executing the power of attorney.
(e)
(d) Apply for and receive a loan on the security of the
contract of insurance or annuity.
(f)
(e) Surrender and receive the cash surrender value.
(g)
(f) Exercise an election.
(h)
(g) Change the manner of paying premiums.
(i)
(h) Change or convert the type of insurance contract or
annuity as to any insurance contract or annuity with respect to
which the principal has or claims to have a power described in this
section.
(j) Change the beneficiary of a contract of insurance or annuity,
but the agent may not be designated a beneficiary except to the
extent permitted by subdivision (d).
(k)
(i) Apply for and procure government aid to guarantee
or pay premiums of a contract of insurance on the life of the
principal.
( l )
(j) Collect, sell, assign, hypothecate, borrow upon, or
pledge the interest of the principal in a contract of insurance or
annuity.
(m)
(k) Pay from proceeds or otherwise, compromise or
contest, and apply for refunds in connection with, a tax or
assessment levied by a taxing authority with respect to a contract of
insurance or annuity or its proceeds or liability accruing by reason
of the tax or assessment.
SEC. 6. Section 4458 of the Probate Code is amended to read:
4458. In a statutory form power of attorney, the language
granting power with respect to estate, trust, and other beneficiary
transactions, empowers the agent to act for the principal in all
matters that affect a trust, probate estate, guardianship,
conservatorship, escrow, custodianship, or other fund from which the
principal is, may become, or claims to be entitled, as a beneficiary,
to a share or payment, including the power to do all of the
following:
(a) Accept, reject, disclaim, receive, receipt
for, sell, assign, release, pledge, or
exchange, or consent to a reduction in or modification of
a share in , or payment from , the
fund.
(b) Demand or obtain by litigation or otherwise money or other
thing of value to which the principal is, may become, or claims to be
entitled by reason of the fund.
(c) Initiate, participate in, and oppose litigation to ascertain
the meaning, validity, or effect of a deed, will, declaration of
trust, or other instrument or transaction affecting the interest of
the principal.
(d) Initiate, participate in, and oppose litigation to remove,
substitute, or surcharge a fiduciary.
(e) Conserve, invest, disburse, and use anything received for an
authorized purpose.
(f) Transfer an interest of the principal in real property,
stocks, bonds, accounts with financial institutions, insurance, and
other property, to the trustee of a revocable trust created by the
principal as settlor.
(g) Disclaim a detrimental transfer to the principal with the
approval of the court.
SEC. 7. Section 4460 of the Probate Code is amended to read:
4460. (a) In a statutory form power of
attorney, the language granting power with respect to personal and
family maintenance empowers the agent to do all of the following:
(a)
(1) Do the acts necessary to maintain the customary
standard of living of the principal, the principal's spouse,
children, and other individuals customarily or legally entitled to be
supported by the principal, including providing living quarters by
purchase, lease, or other contract, or paying the operating costs,
including interest, amortization payments, repairs, and taxes on
premises owned by the principal and occupied by those individuals.
(b)
(2) Provide for the individuals described in
subdivision (a) paragraph (1) all of the
following:
(1)
(A) Normal domestic help.
(2)
(B) Usual vacations and travel expenses.
(3)
(C) Funds for shelter, clothing, food, appropriate
education, and other current living costs.
(c)
(3) Pay for the individuals described in
subdivision (a) paragraph (1) necessary medical,
dental, and surgical care, hospitalization, and custodial care.
(d)
(4) Continue any provision made by the principal, for
the individuals described in subdivision (a)
paragraph (1) , for automobiles or other means of
transportation, including registering, licensing, insuring, and
replacing them.
(e)
(5) Maintain or open charge accounts for the
convenience of the individuals described in subdivision (a)
paragraph (1) and open new accounts the agent
considers desirable to accomplish a lawful purpose.
(f)
(6) Continue payments incidental to the membership or
affiliation of the principal in a church, club, society, order, or
other organization and continue contributions to those organizations.
(b) The authority of an agent with respect to personal and family
maintenance under this section is not dependent on any other grant of
authority to the agent to make gifts on the principal's behalf and
is not limited by any limitation that otherwise applies to the
authority of the agent to make gifts on the principal's behalf.
SEC. 8. Section 4461 of the Probate Code is amended to read:
4461. In a statutory form power of attorney, the language
granting power with respect to benefits from social security,
medicare, medicaid, or other governmental programs, or civil or
military service, empowers the agent to do all of the following:
(a) Execute vouchers in the name of the principal for allowances
and reimbursements payable by the United States or a foreign
government or by a state or subdivision of a state to the principal,
including allowances and reimbursements for transportation of the
individuals described in paragraph (1) of subdivision (a)
of Section 4460, and for shipment of their household effects.
(b) Take possession and order the removal and shipment of property
of the principal from a post, warehouse, depot, dock, or other place
of storage or safekeeping, either governmental or private, and
execute and deliver a release, voucher, receipt, bill of lading,
shipping ticket, certificate, or other instrument for that purpose.
(c) Prepare, file, and prosecute a claim of the principal to a
benefit or assistance, financial or otherwise, to which the principal
claims to be entitled, under a statute or governmental regulation.
(d) Prosecute, defend, submit to arbitration, settle, and propose
or accept a compromise with respect to any benefits the principal may
be entitled to receive.
(e) Receive the financial proceeds of a claim of the type
described in this section, conserve, invest, disburse, or use
anything received for a lawful purpose.
SEC. 9. Section 4462 of the Probate Code is amended to read:
4462. In a statutory form power of attorney, the language
granting power with respect to retirement plan transactions empowers
the agent to do all of the following:
(a) Select payment options under any retirement plan in which the
principal participates, including plans for self-employed
individuals.
(b) Designate beneficiaries under those plans and change existing
designations.
(c)
(b) Make voluntary contributions to those plans.
(d)
(c) Exercise the investment powers available under any
self-directed retirement plan.
(e)
(d) Make rollovers of plan benefits into other
retirement plans.
(f)
(e) If authorized by the plan, borrow from, sell assets
to, and purchase assets from the plan.
(g)
(f) Waive the right of the principal to be a
beneficiary of a joint or survivor annuity if the principal is a
spouse who is not employed.
SEC. 10. Section 4465 of the Probate Code is repealed.
4465. A statutory form power of attorney under this part does not
empower the agent to modify or revoke a trust created by the
principal unless that power is expressly granted by the power of
attorney. If a statutory form power of attorney under this part
empowers the agent to modify or revoke a trust created by the
principal, the trust may only be modified or revoked by the agent as
provided in the trust instrument.
SEC. 11. Section 4465 is added to the Probate Code, to read:
4465. A statutory form power of attorney under this part does not
empower the agent to take any of the actions specified in Section
4264 unless the statutory form power of attorney expressly grants
that authority to the attorney-in-fact.