University of Arkansas at Little Rock Law Review

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Among its significant reforms, the Uniform Power of Attorney Act (UPOAA) denies agents nine types of power unless “the power of attorney expressly grants” them. Those so-called “hot powers” relate to delegations of fiduciary authority and to donative transfers of the principal’s property for less than full consideration. The donative hot powers include creating, amending, or terminating a trust; making gifts; creating or changing beneficiary designations; creating or changing rights of survivorship; and waiving or disclaiming property interests. The rationale for requiring the grant of specific authority is the risk those acts pose to the principal’s property and estate plan.

Although the UPOAA was approved fifteen years ago and thereafter adopted by about thirty U.S. jurisdictions, only a dozen or so judicial opinions address the donative hot powers, and some of them are “unpublished.” Consequently, while “uniformity of application and construction” is a goal of the UPOAA, the number and availability of authorities construing and applying the donative hot-powers provisions is limited.

Within those judicial opinions dealing with donative hot powers, only the power to “make a gift” meaningfully has been considered. Regarding other donative hot powers, most notable is a failure of courts to recognize that transfers they have permitted agents to make required express authority that did not appear to exist. This Article analyzes fourteen donative hot-powers decisions.

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