Power of Attorney Requirements in Kansas

At a glance

Requirements one by one

Governing law

Financial powers of attorney are governed by the Kansas Power of Attorney Act, K.S.A. 58-650 to 58-665, first enacted in 2003 and most recently amended in 2021: "K.S.A. 58-650 through 58-665, and amendments thereto, shall be known and may be cited as the Kansas power of attorney act" (§ 58-650). This is a Kansas-drafted statute, not the Uniform Power of Attorney Act that many other states have adopted. Healthcare powers of attorney fall under a separate part of the same chapter (§§ 58-625 to 58-632) and are outside this survey's scope.

Who must sign

The principal signs. If the principal is "physically unable to sign the power of attorney but otherwise competent and conscious," an adult designee may sign the principal's name instead, but only "in the presence of the principal and at the specific direction of the principal expressed in the presence of a notary public" (§ 58-652(a)(3)). The designee's signature must then be acknowledged before the notary the same as if the principal had signed it.

Notarization

Mandatory, not merely a presumption. To be durable, the POA must be "dated and acknowledged in the manner prescribed by the revised uniform law on notarial acts" (§ 58-652(a)(3)) — one of three conditions the statute lists alongside the "durable power of attorney" label and the durability statement. Since a non-durable POA defeats the point for most people executing one, notarization is effectively required for any Kansas POA meant to survive incapacity.

Witnesses

None required by statute. Section 58-652 — Kansas's execution section — makes no mention of witnesses.

Statutory form

Effectively yes, though the form itself is not printed in the K.S.A. A POA "executed on or after July 1, 2021, shall be deemed sufficient if in substantial compliance with the form set forth by the judicial council," and the statute directs the judicial council to "develop a form for use under this section" (§ 58-652(f)). Amendments made by that 2021 change apply only prospectively and do not affect a POA executed before July 1, 2021 (§ 58-652(g)).

Durable by default?

No. Kansas requires you to opt in, not out. The POA must be "denominated a 'durable power of attorney'" and must include a provision stating, in substance, that the attorney in fact's authority "shall not terminate if I become disabled or in the event of later uncertainty as to whether I am dead or alive," or similar durability language (§ 58-652(a)(1)-(2)). Without both the label and the statement, the authority ends when the principal becomes disabled.

Springing POA allowed?

Yes. If the writing "expressly so provides," the grant of authority "shall be effective only upon: (1) a specified future date; (2) the occurrence of a specified future event; or (3) the existence of a specified condition which may occur in the future" (§ 58-652(e)). Kansas gives third parties a built-in reliance mechanism: absent actual knowledge to the contrary, anyone shown the POA "shall be entitled to rely on an affidavit, executed by the attorney in fact," stating that the triggering event or condition occurred — no outside certification (such as a physician's letter) is required by the statute.

Real estate extras

Recording is optional, not a condition of validity: "A power of attorney does not have to be recorded to be valid and binding between the principal and attorney in fact or between the principal and third persons" (§ 58-652(c)(1)). It "may be recorded in the same manner as a conveyance of land is recorded" (§ 58-652(c)(2)) — in practice, with the county register of deeds. If a POA has been recorded, its revocation must be recorded "in the same manner for the revocation to be effective" as to anyone relying on the recorded document (§ 58-652(c)(3)); an unrecorded POA can be revoked by a recorded revocation or "in any other appropriate manner."

Out-of-state POAs

Yes, and Kansas's rule is unusually generous. A "durable power of attorney that purports to have been made under the provisions of the durable power of attorney act of another state is governed by the law of that state and, if durable where executed, is durable and may be carried out and enforced in this state" (§ 58-663(c)). Kansas goes further for a POA executed by an out-of-state resident: it may authorize acts under "whichever law is most favorable toward authorizing such delegation" among Kansas law, the principal's state of residence, or the state where the POA was executed, and is durable if durable under any one of those three (§ 58-663(d)).

What trips people up

• Notarization is not optional here. Unlike most Uniform Power of Attorney Act states, where a notary only creates a presumption of genuineness, Kansas makes acknowledgment a condition of durability itself (§ 58-652(a)(3)).
• Both a label and a statement are required for durability. Merely calling a document a "power of attorney" is not enough; it must be denominated "durable" and carry the prescribed durability language (§ 58-652(a)(1)-(2)).
• Springing POAs rely on the agent's own affidavit. Because § 58-652(e) lets third parties rely on the attorney in fact's sworn statement that a future event or condition occurred, principals who want independent verification should specify their own mechanism in the document.
• Recording only matters if you want the protection it gives. A POA is fully valid unrecorded, but once you do record one, forgetting to record its revocation lets anyone relying on the record keep honoring the old POA (§ 58-652(c)(3)).

Common questions

Must the appointed attorney in fact act? Not merely because of the appointment. K.S.A. 58-652(d) says the agent has no duty to exercise authority unless the agent expressly agreed in writing to act, and acting in one or more transactions does not create a duty to handle later transactions.

Does the Judicial Council form safe harbor apply to an older document? The statutory sufficiency rule in K.S.A. 58-652(f) applies to a power of attorney executed on or after July 1, 2021. An older instrument is evaluated under the law applicable to its execution rather than that new safe-harbor date.

Statutes and sources

• K.S.A. 58-650 — short title and statutory range of the Kansas Power of Attorney Act. View official text (ksrevisor.gov)
• K.S.A. 58-652(a), (c)-(f) — durability language, signature and acknowledgment, recording, agent-duty, springing-authority, and Judicial Council form rules. View official text (ksrevisor.gov)
• K.S.A. 58-663(c)-(d) — enforcement and choice-of-law treatment for powers executed under another state's law. View official text (ksrevisor.gov)