(1) In this section, a gift "for the benefit of" a person includes a gift to a trust, an account under the federal "Uniform Transfers to Minors Act", and a tuition savings account or prepaid tuition plan as defined under Internal Revenue Code section 529, 26 U.S.C. sec. 529, as amended.
(2) (a) Unless the power of attorney otherwise provides, language in a power of attorney granting general authority with respect to gifts authorizes the agent only to:
Make outright to, or for the benefit of, a person, a gift of any of the principal's property, including by the exercise of a presently exercisable general power of appointment held by the principal, in an amount per donee not to exceed the annual dollar limits of the federal gift tax exclusion under Internal Revenue Code section 2503 (b), 26 U.S.C. sec. 2503 (b), as amended, without regard to whether the federal gift tax exclusion applies to the gift, or if the principal's spouse agrees to consent to a split gift pursuant to Internal Revenue Code section 2513, 26 U.S.C. sec. 2513, as amended, in an amount per donee not to exceed twice the annual federal gift tax exclusion limit; and
Consent, pursuant to Internal Revenue Code section 2513, 26 U.S.C. sec. 2513, asamended, to the splitting of a gift made by the principal's spouse in an amount per donee not to exceed the aggregate annual gift tax exclusions for both spouses.
(b) Paragraph (a) of this subsection (2) does not apply to, or affect by inference or otherwise, a power of attorney in existence on December 31, 2009, unless, on that date, this part 7 applies to the power of attorney as provided in section 15-14-745 (2).
(3) An agent may make a gift of the principal's property only as the agent determines is consistent with the principal's objectives if actually known by the agent and, if unknown, as the agent determines is consistent with the principal's best interest based on all relevant factors, including:
The value and nature of the principal's property;
The principal's foreseeable obligations and need for maintenance;
Minimization of taxes, including income, estate, inheritance, generation-skipping transfer, and gift taxes;
Eligibility for a benefit, a program, or assistance under a statute or regulation; and(e) The principal's personal history of making or joining in making gifts.
Source: L. 2009: Entire part added, (HB 09-1198), ch. 106, p. 410, § 1, effective April 9. L. 2011: (2) amended, (SB 11-083), ch. 101, p. 311, § 23, effective August 10.
SUBPART 3
STATUTORY FORMS
OFFICIAL GENERAL COMMENT
Subpart 3 provides a concise, optional statutory form for creating a power of attorney under this Act (Section 15-14741). With the proliferation of power of attorney forms in the public domain, the advantage of a statutorily-sanctioned form is the promotion of uniformity in power of attorney practice. In states such as Illinois and New York, where state- sanctioned statutory forms have existed for many years, the statutory form is widely used by both lawyers and lay persons. The familiarity and common understanding achieved with the use of one statutory form also facilitates acceptance of powers of attorney. In the twenty years preceding this Act, the number of states with statutory forms has increased from only a few to eighteen.
In addition to the statutory form powerof attorney, Subpart 3 provides an optional form for agent certification of facts pertaining to a power of attorney (Section 15-14- 742). Pursuant to Section 15-14-719, a person may request an agent to certify any factual matter concerning the principal, agent, or power of attorney. The form in Section 15-14-742 is intended to facilitate agent compliance with these requests. The form lists factual matters about which persons commonly request certification (e.g., the principal is alive and has not revoked the power of attorney or the agent's authority), and provides a designated space for certification of additional factual statements. Both the statutory form power of attorney and the agent certification form
may be tailored to accommodate individual circumstances and objectives.