Basics of Kansas Power of Attorney Requirements

Defining Power of Attorney

A Power of Attorney (POA) is a document that is created under Kansas law that allows you to appoint another person (your "attorney-in-fact," "agent," or "attorney") to make decisions on your behalf and to act as if they were you. A properly prepared and executed Durable Power of Attorney provides an easy way for Kansas residents to plan for the possibility that they may become incapacitated or need someone else to handle their affairs.
When you grant someone Power of Attorney, they can conduct transactions in your name — whether it’s to sign your name on a home sale or manage activities on your bank or investment accounts. While durable POAs generally are used while the grantor is still alive , a Legal Power of Attorney for Financial Matters can grant powers that survive the grantor’s death. These include the power for your attorney to be able to pay your bills and to file tax returns in your name, power to gift assets as your Agent determines are necessary for planning purposes, and power to cash checks into the accounts of your children and/or grandchildren.
If you cannot communicate your wishes or unable to handle your financial matters, then having one or more Durable Powers of Attorney in place gives you peace of mind and allows someone else to take care of your financial affairs without court intervention, which is the process of Guardianship/Conservatorship.
The Kansas Power of Attorney Act requires certain legal formalities to make a POA effective in Kansas.

Types of Power of Attorney in Kansas

Kansas recognizes several types of power of attorney, each serving unique purposes. Beyond the standard durable power of attorney, Kansas law provides for medical power of attorney, in which the principal selects a trusted person to handle healthcare-related matters in the event he or she becomes unable to make decisions. A durable power of attorney is a general power of attorney that allows the nominated agent to manage all relevant personal and financial matters of the principal, should the principal become unable to do so. Unlike with a living trust, the agent under a durable power of attorney can take control of all matters immediately upon signing of the power of attorney, including those that are not likely to become an issue for many years, while at the same time the agent is required to consider only those circumstances that might arise should the principal become legally disabled or incapacitated.
A limited power of attorney is granted for a specific transaction, such as the sale or purchase of real property and generally only authorizes a nominated agent to act in connection with that specific matter. A conventional power of attorney and a statutory form of power of attorney are also common in Kansas. A conventional power of attorney is typically drafted to include specific provisions and much detail, while the statutory form is designed to cover a more general scope of both legal and financial matters. On the other hand, a financial power of attorney remains the most simplistic of these documents, granting the nominated agent with the principal’s authority over a certain matter requested; however, the nominated agent’s power over the requested matter ceases when the matter is completed, at which time a successor must be appointed and another agreement signed.

Kansas Legal Requirements

In Kansas, the law governing powers of attorney is found in 58-660 et seq. of the Kansas Statutes Annotated (K.S.A.). To be valid and effective, a Kansas power of attorney must be in writing; signed by the "principal"; dated; and signed by two competent witnesses or a notary public. There is no prohibition against or limitation on the number of witnesses. An individual cannot act as a witness if such individual: (1) is a health care provider enrolled in the federal Medicare program who is providing treatment or has provided treatment to the principal at the time of execution of the power of attorney; or (2) is related to the principal by blood or marriage. K.S.A. 58-628. If the power of attorney appoints more than one agent, each agent must sign the power of attorney, unless the power of attorney provides otherwise. K.S.A. 58-666. The Kansas statutory power of attorney for financial matters requires that the notary public signing it must also sign a certificate attesting: that at the time the notary public was acting he/she was commissioned as a notary public; to the best of his/her knowledge the principal is the individual named, and witnessed the signature of that individual; that the signature of the individual was voluntary; and that the principal appeared to be of sound mind. A statutory form is provided in K.S.A. 58-670.

How to Create a Power of Attorney

Kansas offers several power of attorney options including a Financial Power of Attorney and a Medical Power of Attorney. A Power of Attorney is a legal document giving one person the power to make decisions for another person who is not able to do so. Kansas Law Chapter 58, Article 632 establishes the rules governing Powers of Attorney in Kansas. Kansas also recognizes durable Powers of Attorney. A Durable Power continues in effect after the principal is incapacitated.

Step 1: Principle chooses Agent

The person signing the Power of Attorney must choose an Agent. The Agent must be at least 18 years of age. If the Agent becomes ill or dies, an alternate may act as Agent.

Step 2: Determine Terms

The Power of Attorney form is in effect only while the principal is competent. A Power of Attorney can be immediate, beginning at the time the instrument is signed. A Power of Attorney can also be "springing," meaning that it will go into effect when the principal is no longer competent. It is the principal’s decision whether the Power of Attorney will begin while the principal is competent or "spring" into effect later. You may also determine when the springing powers begin. If the power of attorney is "springing," you should clearly indicate how and when the powers spring into existence.

Step 3: Sign Document

Once the terms are determined, the Power of Attorney is executed and signed. The following sentence appears on a Kansas Power of Attorney:
"The undersigned appoint(s) ________________ as my agent(s) to act for me in any way I can act, including but not limited to, filing a complaint on my behalf, appearing in court to prosecute or defend such actions, and taking all proper steps in furtherance of such action including the setting of bail and compromise of any suits instituted."
The Kansas Power of Attorney also contains a list of powers given to the Agent.

How to Rescind or Alter a Power of Attorney

You still have the power to revoke or change a power of attorney. If you revoke a power of attorney that you created in your capacity as your own agent, it is effective as to all persons and entities upon its execution, and the person named as your agent must promptly return the document to you if they have it. However, if you created a power of attorney designating an agent, and you are now concerned about your agent’s powers, you should either:
It is best to initiate the process for execution of a judicially-approved revocation of a power of attorney as soon as possible with respect to an agent’s actual power of authority to carry on your business and other affairs, especially if such agent has already abused or is in the process of abusing the powers granted. In a judicial proceeding for revocation of a power of attorney , the person to whom the power of attorney was given is provided notice of the petition for revocation of the document and has the right to be represented by counsel and appear to contest the petition.
The filing of a petition seeking a judicial revocation will suspend the agent’s powers at least temporarily pending a final order from the court. A court will only grant a petition to revoke a power of attorney if it determines by a preponderance of the evidence that: (1) the principal was incompetent at the time the power of attorney was executed; or (2) the agent has abused the powers conferred or is likely to abuse those powers in the future. The burden of proof rests upon the person asserting the validity of the power of attorney sought to be revoked. It is advisable for principals to have existing financial institutions consulted for contractual limitations or restrictions on the authority of their agents, and any other conditions to which their agents must adhere, so that such institutions can prevent any misuse of the powers and prevent any injury to the principals.

Mistakes on Powers of Attorney in Kansas

One problem I see quite often is a person who believes that they have prepared a Kansas power of attorney, only to find out that it doesn’t work. The reason? They used a power of attorney from another state or a downloadable fill-in-the-blank form that is not specific enough about the kind of powers the attorney in fact can have.
Another common mistake is failing to determine when the power of attorney comes into effect. In Kansas, unless your power of attorney states otherwise, it will go into effect immediately upon being signed by the agent. This is different than the laws in many other states that only allow a power of attorney to be effective upon the principal’s incapacity. To eliminate the uncertainty that can come with the immediate effect of a power of attorney, it can be helpful to list the circumstances under which the power of attorney will come into effect.
Another particularly confusing issue is whether a power of attorney stops being effective when the principal is no longer able to make their own decisions. This is referred to as a springing power of attorney and is frequently used in powers of attorney prepared for people with dementia. However, if you don’t want your power of attorney to stop being effective just because a doctor says that you are no longer able to make your own decisions (which is not always easy to confirm), you need to make sure that your power of attorney expressly states that it does not terminate when you are unable to make your own decisions.
Other issues that can create problems with your power of attorney are who you name as your agent, when the power of attorney will end, who can witness the signing of the power of attorney, and who can serve as the agent’s attorney in fact.

When to Consult a Lawyer

While Kansas does provide free forms, there are multiple ways to comply with the Kansas statutes. A consultation with an attorney, even if it is to only get direction about what you can do on your own , will give you the assurance that what you are doing is complying with Kansas law. Having an attorney help with your power of attorney also gives you the peace of mind that your documents will be perfectly tailored for your situation and will solve exactly the problems you need them to. Legal counsel may also assist you in your planning to consider other documents such as revocable trust, pour-over will, living will etc. which all have their own unique characteristics and use.