Bulletin: KS000003

Dear Associates:

Kansas House Bill 2034 takes effect July 1, 2003. It recodifies the Kansas Power of Attorney Act.

The most important change for our industry is the requirement that certain powers must be expressly enumerated and authorized.  The new statute provides that any power of attorney may grant power "to alienate the homestead without the joint consent of husband and wife when that relationship exists, if the power of attorney specifically:  Gives the attorney in fact the power to sell, transfer and convey the homestead in question; gives the legal description and street address of the property; and states that by the execution of the power of attorney it is the intention of the parties that the act shall constitute the joint consent required by Article 15, Section 9 of the Kansas Constitution and the power of attorney is executed by both the husband and wife in the same instrument;"    (emphasis added)

This means that a Power of Attorney may be given from one spouse to the other granting authority to convey or mortgage the homestead but the power of attorney granting the power from one spouse to the other must be signed by both spouses.  The Power of Attorney must also contain the following language or items:

• Attorney in fact has the power to sell, transfer and convey the homestead; and
  
• Legal description and street address of the property; and
  
• It is the intention of the parties that execution of the power of attorney constitutes the joint consent required by Art. 15, Sec. 9 of the Kansas Constitution.

These requirements apply to all transactions involving a homestead, whether a sale, a refinance or a purchase money mortgage.

Additionally, the Act requires that a power of attorney may be durable if

It states it is a "urable power of attorney;"
It is signed by the principal, and dated and acknowledged.

The power of attorney should be recorded.

The power of attorney may grant general powers to the attorney in fact without a specific list of express powers.

To obtain a full copy of the Act, access the website www.kslegislature.org and enter Bill # 2034.