72 The Alabama Lawyer 491 (2011). LEGISLATIVE WRAP-UP.

• Author: ROBERT L. MCCURLEY, JR.

Alabama Lawyer

2011.

72 The Alabama Lawyer 491 (2011).

LEGISLATIVE WRAP-UP

LEGISLATIVE WRAP-UP ROBERT L. MCCURLEY, JR.For more information about the Institute, contact Bob McCurley at (205) 348-7411 or visit www.ali.state.al.us.

For more than 35 years, the Alabama Law Institute has had law revisions become law and revisions completed and ready for introduction in the next legislative session.

Effective January 1, 2011

1. Alabama Uniform Power of Attorney Act SB 53 (Act 2011-683)

The drafting committee was chaired by Richard Cater with Tom Jones and Othni Lathram as reporter. The bill was sponsored by senators Arthur Orr and Tami Irons and Representative Bill Poole.

A "power of attorney" is an authorization for one person to act on someone else's behalf in a legal or business matter. The person granting the authorization is the "principal" and the person authorized to act is the "agent."

A durable power of attorney is an authorization that continues or becomes effective after the principal becomes incapacitated. Alabama passed our current Durable Power of Attorney statute in 1981 ( See Ala. Code § 26-1-2) to allow one to designate another to make financial decisions for them without requiring a court-appointed conservator.

Under current law a power of attorney is ineffective unless designated as "durable" when the principal subsequently becomes incompetent. This act reverses the default to make all powers of attorney "durable" unless they specifically provide otherwise.

This act will be prospective only in application. Current § 26-1-2 will continue to govern all powers executed prior to the effective date of the new act, and all healthcare powers will be governed by a new § 26-1A-404 which will carry forward existing law as it relates to healthcare powers without change.

The act offers clear guidelines for the agent. It provides: 1. An agent who acts with care, competence and diligence for the best interest of the principal is not liable solely because he or she also benefits from the act or has conflicting interests. 2. Methods for the agent to give notice of his or her resignation if the principal becomes incapacitated

The act encourages acceptance of a power of attorney by third parties by:

1. Providing protections for persons accepting a power of attorney without actual knowledge that it is invalid or has been terminated 2. Offering a protective measure for the principal by providing that third persons may refuse the power if they have the belief that "the Principal may be subject to physical or financial abuse, neglect, exploitation, or abandonment by the Agent" 3. Providing an optional statutory form durable power of attorney

2. Alabama Unsworn Foreign Declarations Act HB 29 (Act 2011-533)

The drafting committee was chaired by Harlan Prater, IV with Othni Lathram serving as reporter. Bill sponsors were Senator Cam Ward and Representative Marcel Black.

This act affirms the validity of a document signed in a foreign country which states it is signed under penalty of perjury.

Prior to this, Alabama law required that all affidavits offered in a court or administrative proceeding be notarized. This means persons who sign documents in foreign countries with information relevant to Alabama cases or transactions must go to the U.S. consular office or find other means to obtain appropriate foreign notarization.

In recent years, access to U.S. embassies and consulates has become more difficult because of closings and added security.

This act requires:

* The declarant must be physically located outside U.S. boundaries; * The declaraqtion must be signed; * The declaration set forth the location of the declarant; and * The declaration set forth that it is signed under penalty of perjury.

Under the act, unsworn declarations cannot be used for: * Depositions; * Oaths of office; * Oaths related to self-proved wills; * Declarations recorded under Title 35 (Property); * Powers of attorney; or * Oaths required to be given before specified officials other than a notary.

Use of an unsworn declaration, like a sworn declaration, would be subject to perjury laws, and the act provides a form that must be substantially followed. The Criminal Code, §13A-10-100(b)(3)(a), defines statements subject to perjury broadly enough to include declarations executed pursuant to this act.

Federal courts have used unsworn declarations for more than 30 years. Federal law allows an unsworn declaration to be recognized and valid as the equivalent of a sworn affidavit if it contains a statement substantially in the form set forth in the federal act.

3. Alabama Revised Notary Act SB 54 (Act 2011-295)

The drafting committee was chaired by Harlan Prater, IV with Othni Lathram serving as reporter. Sponsors were Senator Tammy Irons, Representative Paul DeMarco and Representative Arthur Orr.

Alabama's notary laws were last amended in 1987. Since then, a number of provisions have become outdated. Examples of outdated provisions are the requirement that a notary seal must leave an impression by embossing, limiting notaries to one county and low bond limits.

The Alabama Revised Notary Act changes the law in four ways: 1. The act allows for use of a stamped seal. This allows documents which are filed or stored electronically to show up better after scanning. 2. All new notaries and renewals will be for a statewide commission instead of a notary being either for one county or statewide. Currently, there are more than 74,000 active notaries and only 17 are limited to one county. 3. This act removes the statutory requirement for notaries to keep a journal of their notarial acts and file them in probate court. 4. This act will also increase the bond a notary must hold from $10,000 to $25,000 dollars.

Existing notaries are valid and unchanged until renewed. This revision makes no changes for Alabama international notaries or civil law notaries.

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