How To Make a Power of Attorney in Arkansas FAQ

What Is a Power of Attorney?

A power of attorney is a legal document that allows you as the “principal” to authorize someone you trust as your “agent” or “attorney in fact” to act on behalf of the principal.

There are different types of powers of attorney. A financial power of attorney gives your agent legal authority to handle powers that you give them over your money and your property. You may want a general power of attorney if you have a disability or incapacity, or a limited power of attorney for a specific task, such as a real estate transaction. The Uniform Power of Attorney Act of the Arkansas Code §28-68-101-§28-68-302 covers financial power of attorney laws.

For health care decisions and appointing a health care agent, you use a health care power of attorney, called a durable power of attorney for health care in Arkansas.

When you have a power of attorney, you decide who speaks for you. If you did not and suddenly cannot communicate due to a disability or incapacity, your family members must petition a court for a conservatorship. A court then names someone as your conservator to make decisions for you. Having a power of attorney helps your family avoid spending time and money in court.

Who Can Be My Agent?

Your agent can be anyone who is an adult and mentally competent. When choosing an agent, look for someone trustworthy, organized, and responsible. You can name a family member, friend, accountant, or attorney. Your agent has a fiduciary duty to act in your best interest and to avoid conflicts of interest.

Avoid naming co-agents in your power of attorney. If they disagree, nothing gets done; if they act independently, they can reverse each other’s actions. It can complicate things and confuse third parties. It is better to name someone as your primary agent and another as your backup or successor agent if your primary agent is not able to serve.

What Can My Agent Do in Arkansas?

Your agent can do what you authorize them to do. You can limit them to a specific transaction or give them general authority to handle certain transactions. Typical tasks may be handling your bank accounts, paying bills, and managing your real estate. Arkansas defines the powers under §28-68-201-§28-68-217. You can authorize your agent to handle transactions for the following:

• Real property (real estate)
• Tangible personal property (possessions)
• Stocks and bonds
• Commodities and options
• Banks and other financial institutions
• Operation of entity or business
• Insurance and annuities
• Estates, trusts, and other beneficial interests
• Claims and litigation
• Personal and family maintenance
• Benefits from governmental programs or civil or military service
• Retirement Plans
• Taxes
• Gifts

However, there are certain powers under §28-68-201, which you must expressly grant your agent. These specific powers may allow your agent to reduce your estate as follows:

• Create, amend, revoke, or terminate a living trust
• Make a gift
• Create or change rights of survivorship
• Create or change a beneficiary designation
• Delegate authority granted under this power of attorney
• Waive the principal’s right to be a beneficiary of a joint and survivor annuity, including a survivor benefit under a retirement plan
• Exercise fiduciary powers that the principal has authority to delegate

Why would you want your agent to reduce your estate? Perhaps you want them to have the ability to qualify you for government benefits like Social Security or Medicaid or to minimize estate taxes. Because your agent has broad powers, think carefully about what you want your agent to do and talk to your agent about how to handle your property and assets.

What Is a Durable Power of Attorney in Arkansas?

A durable power of attorney means that your power of attorney is in effect even if you become incapacitated and can no longer manage your affairs. Under §28-68-104, your power of attorney is presumed durable unless you expressly state it terminates upon your incapacity.

When Is the Power of Attorney Effective?

Under §28-68-109, an Arkansas POA is effective upon your signature. You can make your power of attorney effective on a future date or future event or contingency (such as your incapacity) in your power of attorney, called a “springing” power of attorney.

When Does the Power of Attorney End?

A power of attorney in Arkansas under §28-68-110 terminates when the principal dies, revokes the power of attorney, becomes incapacitated (if the power of attorney is non-durable), or when the purpose of the POA is accomplished. It also ends if the principal’s agent dies or is incapacitated or unavailable, and there is no backup or successor agent.

The agent’s authority to act under the power of attorney terminates when:

• The principal revokes the authority;
• The agent dies, becomes incapacitated, or resigns;
• An action is filed for divorce or annulment of the agent’s marriage to the principal or their legal separation unless the power of attorney otherwise provides;
• The power of attorney terminates.

For these reasons, you should consider naming a backup or successor agent to your primary agent.

Does Arkansas Have a Statutory Power of Attorney?

Yes. Arkansas has a statutory power of attorney form provided under §28-68-301. However, using this form is not mandatory. You can create a customized power of attorney yourself following Arkansas’s legal requirements or hire an estate planning attorney.

Can I Make My Own Power of Attorney in Arkansas?

Yes. If you are an adult and mentally competent, you can make your own power of attorney in Arkansas. Many people looking to do it themselves use state-specific online estate planning forms conforming to Arkansas law. If you have questions about power of attorney documents, however, you should consult with an attorney for legal advice.

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How Do I Make My Power of Attorney Valid in Arkansas?

Arkansas’s legal requirements to make a power of attorney valid are listed under §28-68-105. You have to sign your power of attorney (or direct someone else to sign it for you in your conscious presence) in front of a notary public.

Do I Have to Notarize My Power of Attorney in Arkansas?

Yes, for a power of attorney to be legally valid in Arkansas, it needs a notary public to attest to your signature. This formal process provides proof that the signature on the document is indeed yours and that you signed it willingly and under no duress.

What Should I Do After Signing My Power of Attorney?

After signing your Power of Attorney in Arkansas, you should provide copies to your agent, financial institutions, and anyone else who may need to recognize the agent’s authority. It’s also wise to keep the original document in a safe yet accessible place. A bank or financial institution may require your agent to sign an agent certification form in which they attest your power of attorney is effective, and they can serve as your agent.

Does a Power of Attorney Agent Get Paid in Arkansas?

In Arkansas, your agent can receive reimbursement for reasonable expenses incurred under your power of attorney. Unless you state otherwise in your power of attorney document, your agent may also receive reasonable compensation for their time.

Is My Arkansas Power of Attorney Valid in Another State?

Yes. Generally, a power of attorney created and executed according to Arkansas state laws will be honored in another state.

Can I Revoke My Arkansas Power of Attorney?

Yes. If you are mentally competent, you can revoke your power of attorney at any time. To revoke your power of attorney, provide written notice of revocation to your agent and any other parties relying on your original POA. You should also destroy your original power of attorney.

What Estate Planning Documents Should I Have in Arkansas?

Your financial power of attorney is a valuable legal document when you can’t manage your own affairs and want to avoid a conservatorship. There are also other estate planning documents to consider, such as a health care directive and last will and testament.

A health care directive, also known as an advance directive, incorporates a medical power of attorney and a living will. In your directive, you name a health care agent as your decision-maker. They can get your medical records, speak with providers, and follow your instructions for health care. You can also include your wishes for end-of-life care, such as medical treatments or life-prolonging measures you want or don’t want.

A last will and testament is your written instructions for what happens to your assets and loved ones when you die. In your will, you name who you want to manage your estate, who inherits your property and assets, and who should care for your minor children. If you don’t have a will, you die “intestate,” and a probate court distributes your estate according to Arkansas state laws and makes other decisions, such as your child’s guardian. It is essential that you make these decisions to protect your family and your property.

Fortunately, it is easy to make a valid power of attorney and create estate planning documents in Arkansas with online templates.