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II. All acts done by an agent under a power granted under paragraph I during any period of disability or incompetence of the principal or uncertainty as to whether the principal is dead or alive shall have the same effect and inure to the benefit of and bind a principal and his distributees, devisees, legatees, and personal representatives as if such principal were alive, competent, and not disabled. If a guardian or conservator subsequently is appointed for the principal, such agent, during the continuance of the appointment, shall account to the guardian or conservator rather than to the principal. The guardian or conservator shall have the same power the principal would have had if he were not disabled or incompetent to revoke, suspend, or terminate all or any part of such power of attorney.
III. The death, disability, or incompetence of any principal who has executed a power of attorney in writing other than a power as described by RSA 506:6, I, does not revoke or terminate the agency as to the attorney in fact, agent, or other person who, without actual knowledge of the death, disability, or incompetence of the principal, acts in good faith under the power of attorney or agency. Any action so taken, unless otherwise invalid or unenforceable, binds the principal and his heirs, devisees, and personal representatives. An affidavit, executed by the attorney in fact or agent stating that he did not have, at the time of doing an act pursuant to the power of attorney, actual knowledge of the revocation or termination of the power of attorney by death, disability, or incompetence, is, in the absence of fraud, conclusive proof of the nonrevocation or nontermination of the power at that time. If the exercise of the power requires execution and delivery of any instrument which is recordable, the affidavit when authenticated for record is likewise recordable. This paragraph shall not be construed to alter or affect any provision for revocation or termination contained in the power of attorney.
IV. A durable power of attorney shall be executed in accordance with the requirements of RSA 477:9.
V. (a) An attorney in fact is not authorized to make gifts, pursuant to the durable power of attorney, to the attorney in fact or to others unless:
(1) The durable power of attorney explicitly authorizes gifts; and
(2) The proposed gift will not leave the principal without sufficient assets or income to provide for the principal's care without relying on Medicaid, other public assistance or charity, unless the authority to make such a gift is expressly conferred, or the gift is approved in advance by the court upon a determination that the gift is authorized in accordance with RSA 506:7, III(e).
(b) No attorney in fact may make a gift to himself or herself of property belonging to the principal unless the terms of the power of attorney explicitly provide for the authority to make gifts to the attorney in fact, or the gift is approved in advance by the court upon a determination that the gift is authorized in accordance with RSA 506:7, III(e).
(c) This paragraph shall not in any way impair the right or power of the principal, by express words in the power of attorney, to further authorize, expand, or limit the authority of any agent to make gifts of the principal's property.
VI. (a) A disclosure statement, signed by the principal, in substantially the following form, shall be affixed to a durable general power of attorney:
Notice to the Principal: As the ""Principal,'' you are using this Durable Power of Attorney to grant power to another person (called the "" Agent'' or ""Attorney in Fact'') to make decisions, including, but not limited to, decisions concerning your money, property, or both, and to use your money, property, or both on your behalf. If this written Durable Power of Attorney does not limit the powers that you give to your Agent, your Agent will have broad and sweeping powers to sell or otherwise dispose of your property, and to spend your money without advance notice to you or approval by you. Under this document, your agent will continue to have these powers after you become incapacitated, and unless otherwise indicated your Agent will have these powers before you become incapacitated. You have the right to retain this Power and not to release this Power until you instruct your attorney or any other person who may hold this Power of Attorney to so release it to your Agent pursuant to written instructions. You have the right to revoke or take back this Durable Power of Attorney at any time, so long as you are of sound mind. If there is anything about this Durable Power of Attorney that you do not understand, you should seek professional advice.
_______________________________________________ Principal
(b) The language required by this paragraph shall not confer any powers to the agent that are not otherwise contained in the durable power of attorney.
VII. (a) An agent shall have no authority to act as agent under a durable general power of attorney unless the agent has first executed and affixed to the power of attorney an acknowledgment in substantially the following form:
I, ___________________________________, have read the attached power of attorney and am the person identified as the Agent for the Principal. I hereby acknowledge that when I act as Agent or ""attorney in fact,''; I am given power under this Durable Power of Attorney to make decisions about money, property, or both belonging to the Principal, and to spend the Principal's money, property, or both on the Principal's behalf, in accordance with the terms of this Durable Power of Attorney. This Durable Power of Attorney is valid only if the Principal is of sound mind when the Principal signs it. When acting in the capacity of Agent, I am under a duty (called a ""fiduciary duty'') to observe the standards observed by a prudent person, which means the use of those powers that is reasonable in view of the interests of the Principal and in view of the way in which a person of ordinary judgment would act in carrying out that person's own affairs. If the exercise of my acts is called into question, the burden will be upon me to prove that I acted under the standards of a fiduciary. As the Agent, I am not entitled to use the money or property for my own benefit or to make gifts to myself or others unless the Durable Power of Attorney specifically gives me the authority to do so. As the Agent, my authority under this Durable Power of Attorney will end when the Principal dies and I will not have authority to manage or dispose of any property or administer the estate unless I am authorized to do so by a New Hampshire Probate Court. If I violate my fiduciary duty under this Durable Power of Attorney, I may be liable for damages and may be subject to criminal prosecution. If there is anything about this Durable Power of Attorney, or my duties under it, that I do not understand, I understand that I should seek professional advice.
_______________________________________________ Agent
(b) The acknowledgement by the agent need not be signed when the durable power of attorney is executed as long as it is executed prior to the agent exercising the power granted under the durable power of attorney.
VIII. (a) A power of attorney shall be valid if it:
(1) Is valid under common law or statute existing at the time of execution; or
(2) Has been determined by the court to be valid upon the filing of a petition pursuant to RSA 506:7.
(b) Failure to comply with paragraph VI or VII shall not invalidate an otherwise valid durable general power of attorney, subject to the provisions of RSA 506:7, IV(b).
(c) Notwithstanding the provisions of paragraph VI or VII or RSA 506:7, IV(b), a conveyance of real or personal property to a bona fide purchaser for reasonable consideration under an otherwise valid durable general power of attorney that failed to comply with RSA 506:6, VI or VII, or both, shall not be set aside on account of such failure unless the purchaser had actual knowledge or good reason to believe that the agent was misusing the power of attorney in making the conveyance. This subparagraph shall apply to every conveyance made on or after January 1, 2004, unless an action to set aside such conveyance has been filed prior to the effective date of this subparagraph.
IX. A durable power of attorney validly executed under the laws of another state or foreign jurisdiction shall be deemed valid under New Hampshire law. Foreign powers of attorney shall be subject to the provisions of RSA 506:7. X.
(a) "Durable power of attorney'' as used in this chapter means a power of attorney described in paragraph I.
(b) "Durable general power of attorney'' as used in this chapter means a durable power of attorney that is not limited by its terms to a specified transaction or series of transactions.
XI. Any durable power of attorney limited by its terms to a specified transaction or series of transactions and executed before the effective date of this paragraph shall not be deemed invalid or affected in any way because it does not comply with paragraph VI or VII.
Source. 1977, 453:1. 1985, 214:1, eff. Jan. 1, 1986. 2001, 257:1, eff. Jan. 1, 2002. 2003, 312:3, 4, eff. Jan. 1, 2004. 2005, 71:2-6, eff. May 31, 2005. |
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(a) The agent;
(b) The principal;
(c) The spouse, child, or parent of the principal;
(d) Any person who would take property of the principal under the laws of intestate succession if the principal died at the time the petition is filed, whether or not the principal has a will;
(e) Any person named in the principal's will;
(f) A treating health care provider;
(g) The department of justice, the department of health and human services, or the county attorney.
II. If there is no person specified in subparagraph I(a)-(g) who is able or willing to file a petition for the purposes listed in paragraph III, the court may entertain a petition from any other interested party who demonstrates to the satisfaction of the court the following: (a) Sufficient knowledge of the principal to demonstrate interest in the welfare of the principal; and (b) The lack of capacity of the principal to bring such a petition.
III. A petition may be filed for any of the following purposes:
(a) To determine whether a power of attorney is in effect or has been terminated.
(b) To determine the legality of acts, proposed acts, or omissions of the agent.
(c) To compel the agent to submit an accounting or to report his acts as agent to any of the persons designated in subparagraph I(a)-(g), if such person has made a written request of the agent for an accounting or a report and the agent has not complied with the request within 60 days after the request was made. The 60-day period shall be shortened to 7 days, if the decision at issue relates to a decision affecting health care. The time limit in this subparagraph may be shortened by court order for good cause.
(d) To declare that the power of attorney shall be terminated upon determination by the court that:
(1) The agent has violated or is unfit to perform his fiduciary duties under the power of attorney; and
(2) At the time of the determination by the court, the principal lacks the capacity to give or to revoke a power of attorney; and
(3) The termination of the power of attorney is in the best interest of the principal or of the principal's estate.
(e) To determine that particular gifts or other transactions are authorized. In determining the authority of an agent to make a gift, the court shall consider:
(1) Evidence of the principal's intent;
(2) The principal's personal history of making or joining in the making of lifetime gifts;
(3) The principal's estate plan;
(4) The principal's foreseeable obligations and maintenance needs and the impact of the proposed gift on the principal's housing options, access to care and services, and general welfare;
(5) The income, gift, estate or inheritance tax consequences of the transaction;
(6) Whether the proposed gift creates a foreseeable risk that the principal will be deprived of sufficient assets to cover his or her needs during any period of Medicaid ineligibility that would result from the proposed gift; and
(7) Whether the proposed gift is likely to result in premature or unnecessary nursing home placement or institutionalization of the principal, or compromise the principal's access to care or services in the least restrictive setting in which his or her needs can be met.
IV. (a) The court may hold hearings, issue injunctions, make orders and decrees, and take other actions that are necessary or proper in making determinations and providing relief on matters presented by a petition filed under paragraph III.
(b) When a gift or transfer made by an agent under a durable general power of attorney is challenged in a petition filed under paragraph III of this section, the gift or transfer shall be presumed to be lawful if the durable power of attorney is accompanied by the disclosure statement and acknowledgement drafted in accordance with RSA 506:6, VI and VII, and explicitly authorizes such gifts or transfers as set forth in RSA 506:6, V. However, if the petitioner establishes that the agent made a transfer for less than adequate consideration, and the transfer is not explicitly authorized by a durable power of attorney drafted in accordance with RSA 506:6, VI and VII, the agent shall be required to prove by a preponderance of evidence that the transfer was authorized and was not a result of undue influence, fraud, or misrepresentation.
V. In a proceeding under this section commenced by the filing of a petition by a person other than the agent, the court may order the agent to pay reasonable attorney's fees to the petitioner if the court determines that the agent has clearly violated his fiduciary duties under the power of attorney or has failed without any reasonable cause or justification to submit accounts or reports after written request.
VI. Unless good cause is shown, court hearings conducted on a petition filed under this section shall be closed to the general public. Only the parties, their counsel, witnesses, and representatives of agencies who are present to perform their official duties shall be admitted. The records, reports, and evidence presented to the court shall be confidential. The final decision of the court shall be a public record.
VII. The probate court, prior to authorizing a lifetime gift in a proceeding under this section, shall appoint a guardian ad litem if the proposed gift would benefit the agent personally or otherwise create a potential conflict of interest between the principal's interests and the agent's personal interests.
VIII. The department of health and human services, county attorney, and the department of justice shall be notified and shall have the opportunity to address the court in any proceeding under this section if the court has concerns relative to:
(a) The impact on the principal of any period of Medicaid ineligibility that would result from the proposed gift; or
(b) Whether the principal has been the victim of a crime or has been or is at risk of being abused, neglected, or exploited within the meaning of RSA 161-F:43.
Source. 1987, 138:1. 1989, 7:3, eff. Jan. 1, 1990. 2001, 38:1-3, eff. Jan. 1, 2002; 257:2, eff. Jan. 1, 2002, at 12:01 a.m. 2003, 312:5-8, eff. Jan. 1, 2004. 2005, 71:7, eff. May 31, 2005. |
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