Invalidating a power of attorney

Resembling more than anything last term’s decision in , the opinion shows a Supreme Court bristling at the lack of candor shown by state courts that disagree with its favorable treatment of pre-dispute arbitration agreements.

Doctrinally, the case is written as a routine application of the court’s existing rules holding that the Federal Arbitration Act obligates state courts to put arbitration agreements on an “equal footing” with other contracts and invalidates defenses that “apply only to arbitration or that derive their meaning from the fact that an agreement to arbitrate is at issue.” To the extent there is any new law in this case, it comes in the opinion’s explanation of the last point in the previous paragraph.

You should consider updating your Power of Attorney document if recent state law changes affect you.

While these changes do not invalidate any previously drafted Power of Attorney, changes in certain state laws now provide additional safeguards against abuse of power by agents.

As demonstrated in today’s decision, the court is now forbidding not only a law “prohibiting outright the arbitration of a particular type of claim,” but also “any rule that covertly accomplishes the same objective by disfavoring contracts that (oh so coincidentally) have the defining features of arbitration agreements.” In this case, the Kentucky Supreme Court adopted a rule for all contracts that waive the “divine God-given right” to a jury trial, requiring “an explicit statement before an attorney-in-fact …

could relinquish that right on another’s behalf.” Applying the rule summarized above, the Supreme Court held that the Kentucky decision must fall because the state court “adopt[ed] a legal rule hinging on the primary characteristic of an arbitration agreement—namely, a waiver of the right to go to court and receive a jury trial.” As the opinion puts it, “[s]uch a rule is too tailor-made to arbitration agreements—subjecting them, by virtue of their defining trait, to uncommon barriers.” The Supreme Court’s emphatic quotation of the Kentucky court’s description of the religious underpinnings of the jury-trial right is just one indication that the justices are skeptical about the state court’s sincerity.

If the source note at the end of a Section of the statutes includes a Public Act that has not yet taken effect, the version of the law that is currently in effect may have already been removed from the database and you should refer to that Public Act to see the changes made to the current law.In no other instance shall a delivery of a release, in whole or in part, of a power of appointment be necessary to the validity of such release.Any power of appointment wholly released by a written instrument signed by the donee or donees of such power shall be, in legal effect, completely revoked, and shall not, after such release, be subject to being exercised in any manner whatsoever.If a Power of Attorney is made by a Donor who lacks the requisite capacity then the Power of Attorney will be invalid.Furthermore, it will be important to establish that the Donor has made the Power of Attorney free from any undue influence and/or fraud as the presence of either of these factors will also invalidate the Power of Attorney.