BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | AB 1082|
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CONSENT
Bill No: AB 1082
Author: Gatto (D)
Amended: 5/17/11 in Assembly
Vote: 21
SENATE JUDICIARY COMMITTEE : 4-0, 6/21/11
AYES: Evans, Blakeslee, Corbett, Leno
NO VOTE RECORDED: Harman
ASSEMBLY FLOOR : 78-0, 5/23/11 (Consent) - See last page
for vote
SUBJECT : Powers of attorney: statutory form power of
attorney
SOURCE : Author
DIGEST : This bill provides the same protections that are
granted to non-statutory form powers of attorney to powers
of attorney created using the statutory form provided in
the Probate Code.
ANALYSIS : Existing law authorizes an individual to
appoint another as his/her attorney-in-fact or agent, to
act in his/her stead in legal matters. (Probate Code
ÝPROB] Section 4000)
Existing law provides limits on general and specific powers
that can be granted by an individual to another in a power
of attorney. (PROB Section 4200 et seq.)
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Existing law provides that a person may use a Uniform
Statutory Form Power of Attorney (Form POA) to appoint
another as his/her attorney-in-fact or agent, to act in
his/her stead in legal matters. The appointment must meet
specified requirements and must be executed according to a
prescribed procedure. (PROB Section 4400 et seq.)
Existing law does not apply the same limits on specific
grants of authority in non-form powers of attorney to Form
POAs. (PROB Code Section 4260)
This bill provides that the limits on grants of authority
to attorneys-in-fact contained in PROB Section 4200 et
seq., with exceptions, would apply to Form POAs.
Existing law provides that a power of attorney may not be
construed to grant authority to an attorney-in-fact to
perform any of the following acts unless expressly
authorized in the power of attorney:
1. Create, modify, or revoke a trust;
2. 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;
3. Make or revoke a gift of the principal's property in
trust or otherwise;
4. Exercise the right to make a disclaimer on behalf of the
principal;
5. Create or change survivorship interests in the
principal's property or in property in which the
principal may have an interest;
6. Designate or change the designation of beneficiaries to
receive any property, benefit, or contract right on the
principal's death; and
7. Make a loan to the attorney-in-fact. (PROB Sec. 4264)
This bill adds to the list above and requires the
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individual to expressly grant to the attorney-in-fact the
power to terminate a trust or reject, disclaim, release, or
consent to a reduction in, or modification of, a share in,
or payment from, an estate, trust or other fund on behalf
of the principal.
Existing law provides language required to be contained in
a Form POA. (PROB Section 4401)
This bill specifies in the required notice language of the
Form POA that additional powers available under the PROB
may be specifically listed on the Form POA.
Existing law provides that, unless there is a conflicting
provision in the statutes governing Form POAs, in which
case the provisions of the Form POA statutes govern, the
provisions regarding non-form powers of attorney apply to
Form POAs. (PROB Section 4407)
This bill provides that the non-form power of attorney
provisions apply to Form POAs except when there is a
conflicting provision under the Form POA statutes or when a
provision under the non-form power of attorney statutes
expressly states that the provision does not apply to Form
POAs.
Existing law provides that a person may grant to an
attorney-in-fact specific authority regarding insurance and
annuity transactions, including the ability to name the
attorney-in-fact as a beneficiary of the insurance or
annuity contract. (PROB Section 4457)
This bill removes the ability of the attorney-in-fact to
name himself/herself as a beneficiary of an insurance or
annuity.
Existing law provides that a person may grant to an
attorney-in fact the ability to accept, reject, disclaim,
receive, receipt for, sell, assign, release, pledge,
exchange, or consent to a reduction in or modification of a
share in or payment from the fund established under a
trust, probate estate, guardianship, conservatorship,
escrow, custodianship, or other fund from which the person
is, may become, or claims to be entitled, as a beneficiary,
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to a share or payment. (PROB Section 4458)
This bill removes the grant of authority to an
attorney-in-fact to reject, disclaim, release, or consent
to a reduction in or modification of a share in or payment
from the fund.
This bill authorizes an attorney-in-fact to disclaim a
detrimental transfer to the person with the approval of the
court.
Existing law authorizes an attorney-in-fact to perform
various powers, as specified, with respect to the personal
and family maintenance of the person. (PROB Section 4460)
This bill adds to these specified powers that the authority
of the attorney-in-fact to provide for the personal and
family maintenance of the person is not dependent upon or
limited by any other grant of authority or limitation to
make gifts on the person's behalf.
Existing law provides that, with respect to a retirement
plan, among other things, an attorney-in-fact may be given
authority to designate beneficiaries. (PROB Section 4462)
This bill deletes this provision.
Existing law provides that a Form POA 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. (PROB Section 4465)
This bill repeals and replaces this provision and declares
that the Form POA does not empower the attorney-in-fact to
take any of the actions specified under PROB Section 4262
unless the Form POA expressly grants that authority to the
attorney-in-fact.
FISCAL EFFECT : Appropriation: No Fiscal Com.: No
Local: No
SUPPORT : (Verified 6/22/11)
Executive Committee of the Trusts and Estates Section of
the State Bar of California
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ARGUMENTS IN SUPPORT : The author writes:
"The statutory form power of attorney is sometimes used
by lawyers but is more often used without the assistance
of a lawyer. The common use of a statutory form powers
of attorney without legal advice creates both a greater
potential for abuse by unscrupulous persons and also a
greater chance that the principal may unintentionally
grant his or her agent broader powers than the principal
realizes or intends.
"The purpose of this bill is to provide the same
protections in a statutory form power of attorney as for
all other powers of attorney under California law to be
sure that certain potentially abusive powers to dispose
of the principal's property during lifetime or at death
are not given to an agent unless the power of attorney
expressly grants that power to the agent."
ASSEMBLY FLOOR : 78-0, 5/23/11
AYES: Achadjian, Alejo, Allen, Ammiano, Atkins, Beall,
Bill Berryhill, Block, Blumenfield, Bonilla, Bradford,
Brownley, Buchanan, Butler, Charles Calderon, Campos,
Carter, Cedillo, Chesbro, Conway, Davis, Dickinson,
Donnelly, Eng, Feuer, Fletcher, Fong, Fuentes, Furutani,
Beth Gaines, Galgiani, Garrick, Gatto, Gordon, Grove,
Hagman, Halderman, Hall, Harkey, Hayashi, Roger
Hernández, Hill, Huber, Hueso, Huffman, Jeffries, Jones,
Knight, Lara, Logue, Bonnie Lowenthal, Ma, Mansoor,
Mendoza, Miller, Mitchell, Monning, Morrell, Nestande,
Nielsen, Norby, Olsen, Pan, Perea, V. Manuel Pérez,
Portantino, Silva, Skinner, Smyth, Solorio, Swanson,
Torres, Valadao, Wagner, Wieckowski, Williams, Yamada,
John A. Pérez
NO VOTE RECORDED: Cook, Gorell
RJG:kc 6/23/11 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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