Under Kentucky law, a power of attorney (POA) is established by a legal document that allows an individual to appoint a person or organization to manage their affairs. An individual must file a power of attorney document that specifically authorizes the other party to represent them or their organization. For the Kentucky Department of Revenue, the individual appointing an agent to file state taxes for them should complete Form 20A100, Declaration of Representative.
For federal taxes, the individual can complete IRS Form 2848. Generally, a power of attorney form does not need to be recorded with a government office. The exception is a POA to convey real estate must be recorded with the county clerk.
Features of Powers of Attorney
The person who establishes power of attorney is the principal, and the individual who is named to have power of attorney is their agent. An agent may also be known as an “attorney-in-fact.” This is a person authorized to act for another, but who does not necessarily have the capability and license of an attorney.
Kentucky’s statutes regarding POA are found in the Uniform Power of Attorney Act in Kentucky Revised Statutes (KRS) Chapter 457. Generally, POAs are durable, meaning they last until the principal dies or revokes the POA. A principal also can write into the document that establishes the POA that the POA may last until the power is expressly terminated by incapacity of the principal.
The principal’s signature on a power of attorney form is deemed genuine if the principal signs before a notary public or other person authorized by law to take acknowledgments. A photocopy or electronically transmitted copy of an original power of attorney has the same effect as the original. An agent does not need an attorney to take power under a POA from a principal.
Kentucky Power of Attorney Forms
Kentucky provides a statutory form that allows a principal to establish a POA. The form allows the principal to name one agent. If they wish to name more than one agent, they may name a co-agent in the special instructions. The statutory form does not authorize the agent to make medical decisions for the principal.
Co-agents cannot act together unless the principal includes that provision in the special instructions. If an agent is unable or unwilling to act, the principal’s power of attorney will end unless they have named a successor agent. A statutory power of attorney becomes effective immediately when the form has been completed, signed and notarized.
The statutory power of attorney form provides that a principal may grant an agent and a successor agent general authority to act on behalf of the principal with regard to certain specific subjects. The list of subjects includes:
- Real estate.
- Tangible personal property.
- Stocks and bonds.
- Commodities and other options.
- Banks and other financial institutions.
- Operation of entity or business.
- Insurance and annuities.
- Estates, trusts and other beneficial interests.
- Claims and litigation.
- Personal and family maintenance.
- Benefits from governmental programs or civil or military service.
- Retirement plans.
Specific Powers of an Agent
An agent may not engage in certain acts for a principal unless the principal grants specific authority. These acts can affect estate planning. They include:
- Creating, amending, revoking or terminating an inter vivos trust.
- Making a gift, subject to the limitations of the Uniform Power of Attorney Act in KRS 457.400 and any special instructions in this power of attorney.
- Creating or changing rights of survivorship.
- Creating or changing a beneficiary designation.
- Authorizing another person to exercise the authority granted under this power of attorney.
- Waiving the principal’s right to be a beneficiary of a joint and survivor annuity, including a survivor benefit under a retirement plan.
- Exercising fiduciary powers that the principal has authority to delegate.
- Accessing the content of electronic communications.
Using a power of attorney to disadvantage the principal, or their beneficiaries or heirs, and to enrich the agent could be considered fraud, breach of a fiduciary duty, conversion or elder abuse. A person with a potential claim against an agent under a POA should speak to a private attorney and/or a representative of their local district attorney’s office.
Kentucky Medical Power of Attorney
A principal who wants to give an agent power of attorney for health care decisions should talk to their attorney or healthcare provider about medical power of attorney forms. A medical power of attorney form is likely to differ by healthcare provider. Kentucky has a standard medical/school decision making power of attorney form with regard to minor children.
- Kentucky Department of Revenue: Power of Attorney
- Kentucky Revised Statutes: Section 457.420 Statutory Form Power of Attorney
- Kentucky Revised Statutes: KRS Chapter 457
- Kentucky Department of Revenue: Form 20A100, Declaration of Representative
- IRS.gov: Form 2848, Power of Attorney and Declaration of Representative
- Kentucky Courts: Standard Power of Attorney for Medical/School Decision Making
- Fayette County Clerk: Power of Attorney
Jessica Zimmer is a journalist and attorney based in northern California. She has practiced in a wide variety of fields, including criminal defense, property law, immigration, employment law, and family law.