# Title 30.1 — Uniform Probate Code

## Chapter 30.1-30 — Uniform Durable Power of Attorney Act

### § 30.1-30-01. (5-501) Definition.

A durable power of attorney is a power of attorney by which a principal designates another
as the principal's attorney in fact in writing and the writing contains the words "This power of
attorney is not affected by subsequent disability or incapacity of the principal or by lapse of
time," or "This power of attorney becomes effective upon the disability or incapacity of the
principal," or similar words showing the intent of the principal that the authority conferred is
exercisable notwithstanding the principal's subsequent disability or incapacity, and, unless it
states a time of termination, notwithstanding the lapse of time since the execution of the
instrument.
### § 30.1-30-02. (5-502) Durable power of attorney not affected by disability or lapse of

time.
All acts done by an attorney in fact pursuant to a durable power of attorney during any
period of disability or incapacity of the principal have the same effect and inure to the benefit of
and bind the principal and the principal's successors in interest as if the principal were
competent and not disabled. Unless the instrument states a time of termination, the power is
exercisable notwithstanding the lapse of time since the execution of the instrument.
### § 30.1-30-03. (5-503) Relation of attorney in fact to court-appointed fiduciary.

1. If, following execution of a durable power of attorney, a court of the principal's domicile
appoints a conservator, guardian of the estate, or other fiduciary charged with the
management of all of the principal's property or all of the principal's property except
specified exclusions, the attorney in fact is accountable to the fiduciary as well as to
the principal. The fiduciary has the same power to revoke or amend the power of
attorney that the principal would have had if the principal were not disabled or
incapacitated.
2. A principal may nominate, by a durable power of attorney, the conservator, guardian of
the principal's estate, or guardian of the principal's person for consideration by the
court if protective proceedings for the principal's person or estate are thereafter
commenced. The court shall make its appointment in accordance with the principal's
most recent nomination in a durable power of attorney except for good cause or
disqualification.
### § 30.1-30-04. (5-504) Power of attorney not revoked until notice.

1. The death of a principal who has executed a written power of attorney, durable or
otherwise, does not revoke or terminate the agency as to the attorney in fact or other
person, who, without actual knowledge of the death of the principal, acts in good faith
under the power. Any action so taken, unless otherwise invalid or unenforceable, binds
the principal's successors in interest.
2. The disability or incapacity of a principal who has previously executed a written power
of attorney that is not a durable power does not revoke or terminate the agency as to
the attorney in fact or other person, who, without actual knowledge of the disability or
incapacity of the principal, acts in good faith under the power. Any action so taken,
unless otherwise invalid or unenforceable, binds the principal and the principal's
successors in interest.
### § 30.1-30-05. (5-505) Proof of continuance of durable and other powers of attorney by

affidavit.
As to acts undertaken in good faith reliance thereon, an affidavit executed by the attorney in
fact under a power of attorney, durable or otherwise, stating that the attorney in fact did not have
at the time of exercise of the power actual knowledge of the termination of the power by
revocation or of the principal's death, disability, or incapacity is conclusive proof of the

nonrevocation or nontermination of the power at that time. If the exercise of the power of
attorney requires execution and delivery of any instrument that is recordable, the affidavit when
authenticated for record is likewise recordable. This section does not affect any provision in a
power of attorney for its termination by expiration of time or occurrence of an event other than
express revocation or a change in the principal's capacity.
### § 30.1-30-06. Gifts under power of attorney.

If any power of attorney, durable or otherwise, or other writing authorizes an attorney in fact
or other agent to perform any act that the principal might or could do or evidences the principal's
intent to give the attorney in fact or agent full power to handle the principal's affairs or deal with
the principal's property, the attorney in fact or agent may make gifts. The gifts may be in any
amount of any of the principal's property to any individual or to an organization described in
sections 170(c) and 2522(a) of the Internal Revenue Code or corresponding future provisions of
federal tax law, or both. Notwithstanding this section, a principal, by express words in the power
of attorney or other writing, may authorize, or limit the authority of, any attorney in fact or other
agent to make gifts of the principal's property. This section applies to a power of attorney
executed before August 1, 1995, as well as a power of attorney executed after July 31, 1995.
