Arkansas Durable Power of Attorney
Arkansas durable power of attorney: sign and acknowledge before a notary under Ark. Code Ann. 28-68-105. No witnesses. Durable by default under 28-68-104.
Introduction
A durable power of attorney is a written authorization that puts someone you trust in charge of your finances, property, and business dealings when you cannot manage them yourself. In Arkansas the person you appoint is your agent, a role the older law also calls an attorney-in-fact. What makes the document durable is its staying power: it remains in force after you lose the ability to make your own decisions, and that continued authority is normally the entire reason for signing one. A power of attorney without durability simply stops the day your capacity does. Arkansas put these rules in place through the Uniform Power of Attorney Act, adopted as Act 805 of 2011 and codified at Ark. Code Ann. Sections 28-68-101 to 28-68-406. To make the document valid under Ark. Code Ann. Section 28-68-105, you sign it yourself, or have another individual sign your name while you watch, and acknowledging that signature before a notary public gives it a presumption of genuineness; no witnesses are called for. Durability here is automatic rather than something you opt into: Ark. Code Ann. Section 28-68-104 treats the document as durable unless it plainly states that your incapacity ends it. Arkansas even prints a ready-to-use statutory form at Ark. Code Ann. Section 28-68-301, so a document that tracks that form will do. This guide addresses the financial and general durable power of attorney only; a health-care power of attorney is a distinct Arkansas instrument governed by separate rules. Attorney review is available as an option before you sign.
Key Things to Know
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A durable power of attorney hands your decision-making to someone else. You name an agent, also known as your attorney-in-fact, to look after your money, property, and business affairs. The label durable signals that the document keeps operating even after you can no longer act for yourself, which is the usual reason people put one in place.
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One 2011 act governs it. Arkansas enacted the Uniform Power of Attorney Act as Act 805 of 2011, now codified at Ark. Code Ann. Sections 28-68-101 to 28-68-406. Under Section 28-68-104 a power of attorney made under that act is durable by default, so your agent's authority carries through your incapacity unless the document expressly says it ends there.
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Signing means signing before a notary. Ark. Code Ann. Section 28-68-105 lets you sign the document yourself, or have another individual sign your name while you watch, and it presumes your signature genuine once you acknowledge it in front of a notary public.
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Witnesses are not part of the formula. Nothing in the Arkansas Uniform Power of Attorney Act calls for witnesses. The acknowledgment before a notary is what completes a valid signing, not a set of witness signatures.
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You can start from the state's own form. The statutory form at Ark. Code Ann. Section 28-68-301 is legally sufficient when your document substantially matches it. It reaches financial and property matters and does not extend to health-care choices.
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A handful of powers demand express wording. Ark. Code Ann. Section 28-68-201 lets your agent make a gift, create or change rights of survivorship, change a beneficiary designation, create, amend, or revoke an inter vivos trust, or delegate authority only when the document specifically grants that power.
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Using it for real estate means recording it. Under Ark. Code Ann. Section 18-12-501, a power of attorney that empowers an agent to convey real estate must be acknowledged or proved, certified, and recorded together with the deed the agent signs under it, filed with the recorder where the property is located.
Key decisions before you file
Before you file a Durable Power of Attorney in Arkansas, a few decisions shape the document: which option to choose and what each one means. The Durable Power of Attorney guide walks through them.
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Arkansas Requirements for Durable Power of Attorney
Under Ark. Code Ann. 28-68-105, the power of attorney must be signed by you, or in your conscious presence by another individual you direct to sign your name, and your signature is presumed genuine when you acknowledge it before a notary public. Notarial acknowledgment is the standard execution step.
The Arkansas Uniform Power of Attorney Act does not require witnesses for a power of attorney. Under Ark. Code Ann. 28-68-105 the key execution step is notarial acknowledgment, not witnessing, so a signed and notarized document is valid without witness signatures.
Arkansas makes a power of attorney durable by default. Under Ark. Code Ann. 28-68-104, a power of attorney created under the Act is durable unless it expressly provides that it terminates on your incapacity. To make the authority end on incapacity, the document must say so expressly.
If you want the power of attorney to take effect only later, Ark. Code Ann. 28-68-109 provides that a power of attorney is effective when executed unless you provide that it becomes effective at a future date or upon a future event or contingency. You may name persons authorized to determine that the triggering event occurred.
You may use Arkansas's statutory form power of attorney at Ark. Code Ann. 28-68-301. A document substantially in that form creates a statutory form power of attorney with the meaning and effect the Act prescribes. It covers financial and property matters only and does not authorize health-care decisions.
A power of attorney used to convey or affect real estate must be recorded. Under Ark. Code Ann. 18-12-501 it must be acknowledged or proved, certified, and recorded with the deed the agent makes under it, filed with the recorder where the property is located.
Certain high-risk powers, sometimes called hot powers, are allowed only if your document specifically grants them. Under Ark. Code Ann. 28-68-201, your agent may make a gift, create or change rights of survivorship, change a beneficiary designation, create, amend, or revoke an inter vivos trust, or delegate authority only when the document expressly says so.
Under Ark. Code Ann. 28-68-110, a power of attorney terminates when you revoke it, and an agent's authority ends when you revoke that authority. Termination is not effective against a person who acts in good faith without actual knowledge of it, so give written notice of the revocation.
Frequently Asked Questions
It is a document that appoints an agent, also called an attorney-in-fact, to handle your financial and property affairs for you. The word durable means the authority does not lapse if you later become unable to make decisions; it carries on instead of cutting off. Arkansas builds that durability in automatically, because under Ark. Code Ann. Section 28-68-104 a power of attorney stays effective through your incapacity unless the document expressly provides that it ends then.
It comes down to what a loss of capacity does to the document. A durable power of attorney keeps running after you can no longer make decisions, while a plain, nondurable one stops at that moment. Arkansas sits on the durable-by-default side of that line: Ark. Code Ann. Section 28-68-104 keeps a power of attorney durable unless it expressly states that incapacity terminates it, the reverse of states where you must add durability wording to preserve the authority.
Arkansas enacted its version of the Uniform Power of Attorney Act as Act 805 of 2011. The act is codified at Ark. Code Ann. Sections 28-68-101 to 28-68-406 and sets the rules for execution, durability, agent authority, and the statutory form. Because these rules come from that single 2011 act, a document that meets its signing and durability provisions is valid statewide.
When your agent will use the document to convey or affect real estate, it has to be recorded. Ark. Code Ann. Section 18-12-501 requires the power of attorney to be acknowledged or proved, certified, and recorded together with the deed the agent signs under it. Record it with the recorder in the county where the property is located, so the land records reflect the agent's authority to sign.
No. A power of attorney only works if the person signing still understands and can authorize it, so a relative who has already lost capacity cannot create one. At that stage the alternative is a court guardianship, where a judge appoints someone to manage the person's affairs. The Arkansas Judiciary portal at courts.arkansas.gov explains how the guardianship process works.
Ark. Code Ann. Section 28-68-201 walls off a set of high-stakes acts unless your document specifically authorizes them. That list covers making gifts, creating or altering rights of survivorship, changing a beneficiary designation, creating, amending, or revoking a living (inter vivos) trust, and delegating the agent's own authority. Leave the express language out and your agent simply cannot take those steps.
You revoke it while you still have capacity. Ark. Code Ann. Section 28-68-110 ends the power of attorney when you revoke it and ends an agent's authority when you revoke that. A revocation does not bind someone who acts in good faith without actually knowing about it, so put the revocation in writing and notify your agent and any institution relying on the document. A newer power of attorney cancels an earlier one only if it says so.
No. The financial and general power of attorney covered here runs under the Uniform Power of Attorney Act at Ark. Code Ann. Sections 28-68-101 to 28-68-406, and its statutory form at Section 28-68-301 handles money and property, not medical care. To let someone make health decisions for you, Arkansas uses a separate health-care power of attorney with its own signing requirements.