General Durable Power Of Attorney

There are all sorts of forms executors, beneficiaries, and probate court clerks have to fill out and correspond with during probate and estate settlement, including affidavits, letters, petitions, summons, orders, and notices.

General Durable Power Of Attorney is a commonly used form within Kansas. Here’s an overview of what the form is and means, including a breakdown of the situations when (or why) you may need to use it:

The Judicial Council is providing this form power of attorney as required by K.S.A. 58- 652(g), as amended in 2021. The Probate Law Advisory Committee is grateful to James L. Bush of Hiawatha for providing the Committee with the original version of the form. The Committee has made some changes to place the form in the style it utilizes and to include subsequent statutory amendments. The form is drafted as a durable power of attorney that becomes effective immediately and remains in effect even if the principal becomes disabled or incapacitated, because that is the structure most people use when drafting a power of attorney.

Atticus Fast Facts About General Durable Power Of Attorney

Sometimes it’s tough to find a quick summary— here’s the important details you should know about General Durable Power Of Attorney:

• This form pertains to the State of Kansas

• The relevant probate statute or Kansas laws related to this form include: K.S.A. 58-650, K.S.A. 58-651, K.S.A. 58-652, K.S.A. 58-653, K.S.A. 58-654, K.S.A. 58-655, K.S.A. 58-656, K.S.A. 58-657, K.S.A. 58-658, K.S.A. 58-659, K.S.A. 58-660, K.S.A. 58-661, K.S.A. 58-662, K.S.A. 58-663, K.S.A. 58-664, K.S.A. 58-665, K.S.A. 58-4809, K.S.A. 58-4810

Government forms are not typically updated often, though when they are, it often happens rather quietly. While Atticus works hard to keep this information about Kansas’s Form 61 - General Durable Power Of Attorney up to date, certain details can change from time-to-time with little or no communication.

Step 1 - Download the correct Kansas form based on the name and ID if applicable

Double check that you have both the correct form name and the correct form ID. Some Kansas probate forms can look remarkably similar, so it’s best to double, even triple-check that you’re using the right one! Keep in mind that not all States have a standardized Form ID system for their probate forms.

Step 2 - Complete the Document

Fill out all relevant fields in Form 61, take a break, and then review. Probate and estate settlement processes in KS are long enough to begin with, and making a silly error can push your timeline even farther back. No thank you!

Note: If you don’t currently know all of the answers and are accessing Form 61 online, be sure to avoid closing the browser tab and potentially losing all your progress (or use a platform like Atticus to help avoid making mistakes).

Step 3 - Have Form 61 witnessed or notarized (if required)

Some States and situations require particular forms to be notarized. If you have been instructed to get the document notarized or see it in writing on the document, then make sure to hire a local notary. There are max notary fees in the United States that are defined and set by local law. Take a look at our full guide to notary fees to make sure you aren’t overpaying or getting ripped off.

Step 4 - Submit General Durable Power Of Attorney to the relevant office

This is most often the local probate court where the decedent (person who passed away) is domiciled (permanently resides) or the institution involved with this particular form (e.g. a bank). Some offices allow you to submit forms online, other’s don’t, and we while we generally recommend going in-person to expedite the process, sometimes that simply isn’t an option.

It’s also a generally good idea to establish a positive working relationship with any probate clerk (unfortunately there’s enough people & process out there making things more difficult and unnecessarily confusing for them), so a best practice is to simply ask the probate clerk proactively exactly how and where they’d prefer you to submit all forms.

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Different probate forms or processes can require different deadlines or response times for completing the appropriate form.

While some steps in the process are bound to specific deadlines (like petitioning for probate, having to submit an inventory of assets, or filing applicable notices to creditors and beneficiaries), many probate forms or processes are not tied to a specific deadline since the scope of work can vary based on situational factors or requirements involved.

Either way, there are a bunch of practical reasons why personal representatives should work to complete each step as thoroughly and quickly as possible when completing probate in Kansas.

5 reasons you should submit 61 as quickly as possible:

1. The sooner you begin, the faster Kansas can allow heirs and beneficiaries to get their share of assets subject to probate. Acting promptly can also decrease the costs & overall mental fatigue through an otherwise burdensome process.
   
   Helpful Context: What’s the Difference Between Probate and Non-Probate Assets?

2. In general, creditors of an estate usually have around 3-6 months from the time you file notice to creditors to file any claims for debt against the deceased’s assets. If they don’t, then that debt is forfeited (and more importantly, the executor won’t be held personally responsible). So doing this sooner means you have a better idea of who is owed what and ensures you won’t get a surprise collector months later.

3. Not filing a will within 30 days (on average) could mean that the probate process proceeds according to intestate laws (laws that govern what happens to someone's stuff without a will) or is subject to unnecessary supervision by the probate court. And if you aren't directly related to the deceased (a.k.a. next of kin), this could also mean you lose your inheritance.

4. It’s important to file any necessary state tax returns on behalf of the deceased or estate by the following tax season in Kansas. If you don’t, you could owe penalties and interest. This also includes any necessary federal tax returns such as Forms 1040, 1041, or even a Form 706 estate tax return.

5. If a house in the State of Kansas is left empty (or abandoned) for a while, insurance can get dicey. For example, if the house burns down and no one has been there for a year, an insurance company may get out of paying your claim.

If you’re not using Atticus to get specific forms, deadlines, and timelines for Kansas probate, then try and stay as organized as possible, pay close attention to the dates mentioned in any correspondence you have with the State’s government officials, call the local Kansas probate clerk or court for exact answers regarding Form 61, and when in doubt— consult a qualified trust & estates lawyer for that area.

General Durable Power Of Attorney is one of the many probate court forms available for download through Atticus.

It may also be available through some Kansas probate court sites, such as . In order to access the latest version, be updated with any revisions, and get full instructions on how to complete each form, check out the Atticus Probate & Estate Settlement software or consider hiring a qualified legal expert locally within Kansas.

While Atticus automatically provides the latest forms, be sure to choose the correct version of Form 61 - General Durable Power Of Attorney f using any other site or resource in order to avoid having to re-complete the form process and/or make another trip to the Kansas probate court office.

General Durable Power Of Attorney is a .pdf, so opening it should be as simple as clicking “View Form” from within the Atticus app or by clicking the appropriate link found on any Kansas-provided government platform. Once you’ve opened the form, you should be able to directly edit the form before saving or printing.

Here’s the text, verbatim, that is found on Kansas Form 61 - General Durable Power Of Attorney. You can use this to get an idea of the context of the form and what type of information is needed.

Kansas Probate Forms 3d 10-17 61 GENERAL DURABLE POWER OF ATTORNEY (1) I, (principal) , of (street address) , (city) , (state) , appoint (attorney in fact) of (city) , (state) , as my attorney in fact under the Kansas Power of Attorney Act, K.S.A. 58-650 to K.S.A. 58-665. [In the event of the subsequent disability, death or disqualification of the attorney in fact I have designated, I appoint (name) of (city) , (state) .] (2) This is a durable power of attorney and the authority of my attorney in fact shall not terminate if I become disabled or in the event of later uncertainty as to whether I am dead or alive. (3) This durable power of attorney shall become effective immediately. GENERAL GRANT OF AUTHORITY (4) General powers are granted to my attorney in fact and my attorney in fact is granted the power to act with respect to all lawful subjects and purposes and my attorney in fact’s authority shall extend to and include each and every action or power which an adult who is not disabled may carry out through an agent specifically authorized in the premises, with respect to any and all matters whatsoever, except as provided in paragraph (7) . (5) The general authority granted and assumed by the attorney in fact shall include, but not be limited to the following acts, conducted either directly or by electronic means: (a) To ask, demand, sue for, recover, collect and receive any and all such sums of money, debts, deposits, certificates of deposit, accounts, legacies, bequests, interest dividends, annuities, and demands whatsoever as now or shall hereafter become due, owing payable or belonging to me, including any proceedings under the Bankruptcy Act or similar statutes; (b) To write checks on any of my checking accounts, deposit and withdraw moneys from savings accounts, sign or endorse checks of any nature payable to me, assign or transfer stock certificates, and certificates of deposit and enter any safety deposit box leased in my name or my name and others if I would otherwise be permitted access to such box; 2021 Kansas Probate Forms 3d 10-18 (c) To maintain, repair, improve, manage, insure, rent, lease, sell, convey, mortgage, in any way or manner deal with all or any part of any real or personal property whatsoever, tangible or intangible, or any interest, including joint interest in such property, that I now own or may later acquire, for me, on my behalf, in my name and under such terms and conditions and such other covenants as my attorney in fact may deem proper and in my name to make, execute, acknowledge good and sufficient deeds of conveyance or other instrument or instruments necessary to effect such sale, conveyance or agreement; (d) To conduct, engage in, and transact any and all lawful business of whatsoever nature or kind for me, on my behalf, and in my name, including exercising any rights I may hold as an owner of an interest in a business entity or sole proprietorship; (e) To transfer any interests in property I may own to a revocable or living trust created by me, which trust benefits me during my life; (f) To participate or not participate, as my attorney in fact may determine, in any program, plan or activity dealing with agricultural land or practices sponsored by or under the supervision or direction of the United States Department of Agriculture (USDA), Farm Service Agency (FSA), Commodity Credit Corporation (CCC) or Federal Crop Insurance Corporation (FCIC) or any similar or successor organization or entity; (g) To exercise or perform any act, power, duty, right or obligation whatsoever that I now have or may later acquire the legal right, power, or capacity to exercise or perform, in connection with, arising from, or relating to any person, item, transaction thing, business property, real or personal, tangible or intangible, or matter whatsoever; (h) To resign any position I may hold as a director, officer, fiduciary or in any other capacity; (i) To execute Federal or state income tax returns, gift tax returns or any other returns or forms, documents or agreements relating thereto or otherwise dealing with the IRS or any state agency involved in the collection or payment of any taxes; (j) To open or maintain accounts with financial institutions and to buy, sell, endorse, transfer, hypothecate and borrow against any shares of stocks, bonds or other securities and to vote as my proxy any such shares; (k) To make any and all arrangements deemed appropriate and in my best interest for my personal care, support maintenance, living arrangements and medical care, including admission to a hospital, retirement home or facility, extended care facility, nursing home, hospital or any other convalescent or 2021 Kansas Probate Forms 3d 10-19 medical care unless I have otherwise appointed another person as my attorney in fact for health care decisions, in which event such other appointment shall take precedence over this direction; (l) To apply for Medicaid, Social Security, or any other publicly or privately funded assistance program, and to execute any documents and do any other acts deemed necessary or advisable to qualify me or make me eligible for such assistance. To enter into a Notice of Intent to Divide Resources or Income or both, Interspousal Agreement to Divide Resources or Income or both, or any document of similar purpose, in order to protect as many of my assets as possible from the spend-down requirements of eligibility for Medicaid and thus provide more income and resources to my spouse; to make any transfers to my spouse needed to carry out the terms of such Notice of Intent or other such documents; to make any transfers with or without consideration to my spouse or others (including transfer on any real estate which is my homestead); to sign a statement of my intent to return to my home in connection with any applications for Medicaid assistance for hospital, nursing home or extended health care, or for any other purpose; and to do any other matters necessary or advisable under all the circumstances (including but not limited to my situation and that of my spouse and family and appropriate estate planning for me and my spouse) to increase my eligibility for Medicaid, Social Security, or any other publicly or privately funded assistance program; (m) To execute a power of attorney required by any governmental agency or other entity on my behalf naming my attorney in fact as the attorney in fact authorized to enter into any transaction with such agency or entity; (n) To exercise authority over digital assets on my behalf including a catalogue of electronic communications sent or received by me but not the content of electronic communications unless specifically authorized as an optional additional power. All acts done by my attorney in fact shall inure to my benefit and shall likewise bind me and my successors in interest. OPTIONAL ADDITIONAL POWERS (6) I grant my attorney in fact the authority to take the following actions but only to the extent that I have affirmatively expressed my intentions by initialing on the line designated “include” in front of the description of the power conveyed. If I have initialed the line designated “exclude” or if I have left both lines blank, then I do not intend to grant my attorney in fact the authority to take the action described. 2021 Kansas Probate Forms 3d 10-20 Include Exclude (a) ______ ______ To execute, amend or revoke any trust agreement. (b) ______ ______ To fund with my assets any trust not created by me. (c) ______ ______ To make or revoke a gift of my property in trust or otherwise. (d) ______ ______ To disclaim a gift or devise of property to or for my benefit. (e) ______ ______ To create or change survivorship interests in my property or in property in which I may have an interest. (f) ______ ______ To designate or change the designation of beneficiaries to receive any property, benefit or contract right upon my death. (g) ______ ______ To give or withhold consent to an autopsy or postmortem examination. (h) ______ ______ To make or decline to make a gift of my body parts under an anatomical gift act. (i) ______ ______ To nominate a guardian or conservator for me, and the attorney in fact may nominate himself or herself. (j) ______ ______ To give consent on my behalf to the sale, gift, transfer, mortgage or other alienation of my homestead or interest in my homestead. The street address of the homestead is: , , and the legal description of the homestead is: 2021 Kansas Probate Forms 3d 10-21 Nothing in this document shall be construed as a limitation or abridgement of the right of my spouse to consent or withhold consent to the alienation of the spouse’s homestead or any rights in the homestead, under Article 15, section 9 of the Kansas Constitution. (k) ______ ______ To designate one or more substitute or successor or additional attorneys in fact. (l) ______ ______ To delegate any or all powers contained in this document. (m) ______ ______ To exercise authority over the content of electronic communications sent or received by me pursuant to K.S.A. 58-4809. (n) ______ ______ To pay reasonable expenses incurred for my funeral and burial or other disposition of my body. POWERS PROHIBITED (7) As provided in K.S.A. 58-654(g) my attorney in fact shall not have the power or authority to do any of the following acts: (a) To make, publish, declare, amend or revoke my will; (b) Make, execute, modify or revoke a living will or “do not resuscitate” order or a durable power of attorney for health care decisions; (c) To require me, against my will, to take any action or to refrain from taking any action; (d) To carry out any action I have specifically forbidden while not under any disability or incapacity. ACCOUNTING (8) (Initial the following optional directives desired by the principal) _____ I direct as soon as practicable after my death that my attorney in fact shall provide an accounting to my personal representative or trustee in such manner and for such period as requested by the personal representative or trustee. 2021 Kansas Probate Forms 3d 10-22 _____ I direct as soon as practicable after my disability that my attorney in fact shall provide an accounting to _________________________. _____ I waive the necessity of my attorney in fact providing an accounting to me or any other person during my lifetime or upon my death. _____ (Here insert any other direction relating to accounting.) This instrument is executed, delivered and shall be governed by the Kansas Power of Attorney Act, and amendments thereto and all questions as to its validity, powers of the attorney in fact and construction shall be likewise so governed. _________________________ _________ Principal Date State of Kansas County of _____________________ This instrument was acknowledged before me on ___________________, _______, by _________________________. _______________________________ Notarial Officer _______________________________ Title (SEAL) My Appointment Expires: 2021 Kansas Probate Forms 3d 10-23 CONSENT OF SPOUSE (Optional unless attorney in fact is granted power over the homestead under paragraph (6)(j)) _________________________, spouse of the above named Principal, consents to the provisions of the durable power of attorney of _________________ _______ which provides the attorney in fact may give consent on behalf of the principal to the sale, gift, transfer, mortgage or other alienation of the principal’s homestead or interest in the homestead. In addition, I consent that the attorney in fact may alienate the interest, in whole or in part, of the principal in the homestead described in the durable power of attorney and further, I agree that the consent of the attorney in fact will constitute the consent of the principal required by Article 15, Section 9, of the Kansas Constitution. ______________________________ Spouse State of Kansas County of __________________ This instrument was acknowledged before me on ___________________, _______, by _________________________. _______________________________ Notarial Officer _______________________________ Title (SEAL) My Appointment Expires: 2021 Kansas Probate Forms 3d 10-24 ACCEPTANCE OF AUTHORITY AND AGREEMENT TO ACT (Optional) Now on this ________ day of_________________________, 20 , __________________________, attorney in fact, accepts the authority granted in this document and agrees to act in the best interest of the above named principal in carrying out the duties and responsibilities set forth in this document until such time as said authority is terminated by the principal or by operation of law, whichever occurs first. _______________________________ Attorney in fact State of Kansas County of ______________________ This instrument was acknowledged before me on ___________________, _______, by _________________________. _______________________________ Notarial Officer _______________________________ Title (SEAL) My Appointment Expires: Reference K.S.A. 58-650 to 58-665; 58-4809; 58-4810. Comment The Judicial Council is providing this form power of attorney as required by K.S.A. 58- 652(g), as amended in 2021. The Probate Law Advisory Committee is grateful to James L. Bush of Hiawatha for providing the Committee with the original version of the form. The Committee has made some changes to place the form in the style it utilizes and to include subsequent statutory amendments. The form is drafted as a durable power of attorney that becomes effective immediately and remains in effect even if the principal becomes disabled or incapacitated, because that is the structure most people use when drafting a power of attorney. Thus, in paragraph (2), the Committee has used the required statutory language from K.S.A. 58-652(a)(2)(A). If a “springing” durable 2021 Kansas Probate Forms 3d 10-25 power of attorney is desired, the following language from K.S.A. 58-652(a)(2)(B) should be substituted for paragraph (2): “This is a durable power of attorney and the authority of my attorney in fact, when effective, shall not terminate or be void or voidable if I am or become disabled or in the event of later uncertainty as to whether I am dead or alive.” Paragraph (3) relates to the effective date of the durable power of attorney. If a “springing” durable power of attorney is drafted the following language should be substituted for paragraph (3). “Notwithstanding any other provisions in this document, this power of attorney shall become effective only upon the disability of the principal. The rights, powers and authorities of my attorney in fact shall commence only upon my disability and shall remain in full force thereafter until such disability is terminated. Disability shall be the condition as defined in K.S.A. 58-651(c), and amendments thereto. Such condition shall be conclusively determined by a written declaration of my attending physician.” In addition, if the durable power of attorney is springing, the following or substantially similar language relating to medical records should be included: “I intend for my attorney in fact to be treated as I would be with respect to my rights regarding the use and disclosure of my individually identifiable health information or other medical records. This release authority applies to any information governed by the Health Insurance Portability and Accountability Act of 1996 (HIPAA), 42 USC 1320d and 45 CFR 160-164. I authorize any physician, healthcare professional, dentist, health plan, hospital, clinic, laboratory, pharmacy or other covered health care provider, any insurance company and the Medical Information Bureau, Inc., or other health care clearinghouse that has provided treatment or services to me or that has paid for or is seeking payment from me for such services to give, disclose and release to my agent, without restrictions, all of my individually identifiable health information and medical records regarding any past, present of future medical or mental health condition, including but not limited to information relating to the diagnosis and treatment of HIV/AIDS, sexually transmitted diseases, mental illness and drug and alcohol abuse. The authority given my attorney in fact shall supersede any prior agreement that I may have made with my health care providers to restrict access to or disclosure of my individually identifiable health information. The authority given my attorney in fact has no expiration date and shall expire only in the event that I revoke such authority in writing and deliver it to my health care provider.” Paragraph (4) begins with the statutory language from K.S.A. 58-654 which delegates general powers to the attorney in fact to act on the principal’s behalf with respect to all lawful subjects and purposes. This is all that is required. However, additional paragraphs specifically enumerating specific powers are included in the form because some drafters may prefer such enumeration. The granting of the optional additional powers contained in paragraph (6) are important decisions. The Committee suggests a thorough discussion of these powers with counsel as to 2021 Kansas Probate Forms 3d 10-26 their tax, estate planning and other consequences. The principal should initial next to each specific power, indicating whether that power is included or excluded. If neither line is initialed, the presumption will be that the power is excluded. If a successor attorney in fact is designated (see bracketed language in paragraph 1) and the principal does not want the successor attorney in fact to have the same optional additional powers as the original attorney in fact, an additional section should be added, in which the principal indicates whether each optional additional power is included or excluded as to the successor attorney in fact. If the optional additional power to consent on behalf of the principal to the sale, gift, transfer, mortgage or other alienation of the principal’s homestead in section (6)(j) is chosen, the subsection entitled “Consent of Spouse” is required by K.S.A. 58-654(f)(10) and must be included. If this optional power is not included, the “Consent of Spouse” subsection need not be included. A person who is appointed an attorney in fact under a durable power of attorney has no duty to exercise the authority conferred in the power of attorney, unless the attorney in fact has agreed expressly in writing to act for the principal in such circumstances. The subsection entitled “Acceptance of Authority and Agreement to Act” provides for such express written agreement to act; however it is optional. If a person appoints more than one attorney in fact, the power of attorney should state whether such attorneys in fact must act jointly or may act independently. If the power of attorney does not specify, then K.S.A. 58-653 requires attorneys in fact to act jointly. In 2017, Kansas enacted the Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA), K.S.A. 58-4801 et seq. The RUFADAA provides a mechanism for an attorney in fact to obtain access to a principal’s digital assets from a custodian that is maintaining or storing those digital assets. Under the RUFADAA, a general grant of authority in a power of attorney is sufficient to provide the attorney in fact with authority over all of the principal’s digital assets, including a catalogue of the principal’s electronic communications but not the content of those communications. K.S.A. 58-4810. The RUFADAA distinguishes between the content of electronic communications, which includes the subject line and text of email, text messages, and other private messages, and the catalogue of electronic communications, which includes the list of senders, recipients, and the date and time of the message. K.S.A. 58-4802. An attorney in fact may access the content of electronic communications only if the power of attorney explicitly grants such authority. K.S.A. 58-4809. The optional additional power in paragraph (6)(m) is intended to authorize such access. 2021