Minnesota Durable Power of Attorney
A Minnesota durable power of attorney must be dated, signed, and notarized under Minn. Stat. 523.01, and must expressly state it survives your incapacity.
Introduction
A durable power of attorney is a legal document that lets you name someone you trust to manage your money, property, and business matters if you cannot handle them yourself. In Minnesota that person is called your agent, or attorney-in-fact. The word durable is the key: a durable power of attorney keeps working even if you later become incapacitated and can no longer make decisions, which is usually the whole reason people create one. A power of attorney that is not durable ends the moment you lose that capacity. Minnesota has its own Powers of Attorney act at Minn. Stat. Chapter 523 and did not adopt the Uniform Power of Attorney Act. Under Minn. Stat. 523.01, the document is validly executed when it is dated, signed by the principal, and acknowledged before a notary public. Minnesota does not require witnesses. A Minnesota power of attorney is not durable by default: under Minn. Stat. 523.07 it survives your later incapacity only if it contains express durability language, and without that language Minn. Stat. 523.09 terminates the agent's authority when you become incapacitated. Minnesota also publishes a Statutory Short Form Power of Attorney at Minn. Stat. 523.23, whose wording and content must be duplicated exactly. This guide covers the financial and general durable power of attorney only; a health-care power of attorney is a separate Minnesota instrument. Attorney review is available as an option before you sign.
Key Things to Know
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A durable power of attorney lets someone act for you. It names an agent, also called your attorney-in-fact, to handle your money, property, and business matters. Durable means the document keeps working even if you later become incapacitated, which is usually why people set one up.
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It is not durable unless you say so. Minnesota does not make a power of attorney durable by default. Under Minn. Stat. 523.07 the document must contain express language showing you intend the agent's authority to survive your later incapacity; without it, Minn. Stat. 523.09 terminates that authority when you become incapacitated or incompetent.
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You must notarize it, and no witnesses are required. Under Minn. Stat. 523.01, a Minnesota power of attorney is validly executed when it is dated, signed by the principal, and acknowledged before a notary public. The notary acknowledgment is the only execution formality the statute requires.
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Minnesota publishes a statutory short form. The Statutory Short Form Power of Attorney at Minn. Stat. 523.23 lets you grant listed powers by initialing. To qualify as the statutory short form, its wording and content must be duplicated exactly with no modifications, with parts First, Second, and Third completed and your signature acknowledged.
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Gifts to your agent need express authority and are capped. Under the Minn. Stat. 523.23 form, your agent may not make gifts to themselves, or anyone the agent must support, unless you authorize it on the Part Third line. Even then, Minn. Stat. 523.24, subdivision 8, caps those gifts at the federal annual gift tax exclusion per recipient per calendar year.
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Real-property use means recording. If exercising the power requires a recordable instrument, the power of attorney and any authorized affidavit are recordable when authenticated for record under Minn. Stat. 507.24, as provided by Minn. Stat. 523.05, filed with the county recorder or registrar of titles where the property sits.
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It only works while you have capacity to sign. A power of attorney must be signed by a principal who still understands and authorizes it. If the person is already incapacitated, the family's route is a court conservatorship or guardianship, not a power of attorney.
Key decisions before you file
Before you file a Durable Power of Attorney in Minnesota, 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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Minnesota Requirements for Durable Power of Attorney
Under Minn. Stat. 523.01, a Minnesota power of attorney is validly executed when it is dated, signed by you as principal (or on your behalf by another or by a mark), and acknowledged before a notary public. The notary acknowledgment is part of valid execution, not an optional extra.
Minnesota does not require witnesses for a power of attorney. Under Minn. Stat. 523.01, the notary acknowledgment is the only execution formality the statute requires, so you do not need to add witnesses in addition to notarizing the document.
Minnesota does not make a power of attorney durable by default. Under Minn. Stat. 523.07 the document must contain express language showing you intend the agent's authority to survive your later incapacity; otherwise Minn. Stat. 523.09 terminates that authority when you become incapacitated or incompetent.
If you want the power of attorney to take effect only on a future event such as your incapacity, Minn. Stat. 523.07 expressly allows language stating that the power becomes effective upon the incapacity or incompetence of the principal, which creates a springing durable power of attorney.
You may use Minnesota's Statutory Short Form Power of Attorney at Minn. Stat. 523.23. To qualify as the statutory short form, its wording and content must be duplicated exactly with no modifications, parts First, Second, and Third must be completed, and your signature must be acknowledged.
If exercising the power requires executing and delivering a recordable instrument, the power of attorney and any authorized affidavit are recordable when authenticated for record in conformity with Minn. Stat. 507.24, as provided by Minn. Stat. 523.05. File it with the county recorder or registrar of titles where the property is located.
Under the Minn. Stat. 523.23 form, your agent may not make gifts to themselves, or to anyone the agent is legally obligated to support, unless you expressly authorize it on the Part Third line and name them. Even when authorized, Minn. Stat. 523.24, subdivision 8, caps those gifts at the federal annual gift tax exclusion per recipient per calendar year.
Under Minn. Stat. 523.11, an executed power of attorney may be revoked only by a written instrument of revocation signed by the principal, and the revocation is not effective as to any party until that party has actual notice of it. If the power of attorney was recorded, record the revocation too so it gives notice.
Frequently Asked Questions
A durable power of attorney is a legal document that lets you name an agent, also called an attorney-in-fact, to manage your financial and property matters. It is called durable because, under Minn. Stat. 523.07, it keeps working even if you later become incapacitated, rather than ending when you lose the capacity to make decisions.
The difference is what happens if you become incapacitated. A durable power of attorney contains express language that the agent's authority survives your incapacity, as Minn. Stat. 523.07 requires. A regular, nondurable power of attorney does not, so under Minn. Stat. 523.09 the agent's authority ends when you become incapacitated or incompetent. Minnesota treats a power of attorney as nondurable unless it expressly includes durability language.
Yes. Under Minn. Stat. 523.01, a Minnesota power of attorney is validly executed when it is dated, signed by the principal, and acknowledged before a notary public. Notarization is part of valid execution, not an optional extra. Minnesota does not require any witnesses in addition to the notary acknowledgment.
A springing power of attorney takes effect only when a specified event, such as the principal's incapacity, occurs. Minn. Stat. 523.07 expressly contemplates this by allowing language stating that the power becomes effective upon the incapacity or incompetence of the principal. Including that express language creates a springing durable power of attorney in Minnesota.
Only if you expressly authorize it. The Part Third gift line of the Minn. Stat. 523.23 statutory form provides that the attorney-in-fact may not make gifts to themselves, or anyone they are legally obligated to support, unless you check the authorizing line and name them. Even when authorized, gifts to the agent or those the agent must support may not exceed the federal annual gift tax exclusion per recipient per calendar year under Minn. Stat. 523.24, subdivision 8.
If the power of attorney will be used to execute and deliver a recordable instrument, it can itself be recorded. Under Minn. Stat. 523.05, the power of attorney and any authorized affidavit are recordable when authenticated for record in conformity with Minn. Stat. 507.24. Record it with the county recorder or registrar of titles for the county where the property is located.
Under Minn. Stat. 523.11, an executed power of attorney may be revoked only by a written instrument of revocation signed by the principal, and acknowledged before a notary public if signed on the principal's behalf by another or by a mark. The revocation is not effective as to any party until that party has actual notice of it. If the power was used for real property, recording the revocation with the county recorder or registrar of titles gives notice.
No. A health-care power of attorney in Minnesota is a separate instrument with its own execution rules and is not governed by the financial power of attorney provisions in Minn. Stat. Chapter 523 covered here. The financial power of attorney described in this guide does not authorize health-care decisions, and the Minn. Stat. 523.23 statutory short form is for financial and property matters.