Arkansas Power of Attorney Statute: Key Sections of the Uniform Act

The Arkansas Uniform Power of Attorney Act (Ark. Code Ann. §§ 28-68-101 to 28-68-406) governs every financial power of attorney executed in the state. Understanding its key provisions prevents the drafting errors that lead to bank rejection, court challenges, and operational paralysis during family emergencies.

The Durability Presumption (§ 28-68-104)

Arkansas presumes every power of attorney is durable unless the document explicitly states otherwise. This means the agent's authority automatically survives the principal's mental incapacity — no special "durable" language is required.

This is a significant departure from older common-law rules (and from some other states) where a POA terminated automatically upon incapacity unless it contained specific durability language. In Arkansas, you must actively opt out of durability, not opt in.

Presumption of Genuineness (§ 28-68-105)

A signature acknowledged before a notary public is legally presumed genuine. This presumption shifts the burden of proof — anyone challenging the signature's authenticity must prove it's forged, rather than the agent having to prove it's real.

For practical purposes, this section is why notarization is essential: without it, every institution can demand additional proof of signature authenticity, creating delay after delay.

The "Hot Powers" Restriction (§ 28-68-201)

This is the section that trips up most self-directed planners. Certain high-risk actions are strictly prohibited unless the POA document grants them explicitly and individually:

• Creating, amending, revoking, or terminating an inter vivos trust
• Making a gift of the principal's property
• Creating or changing survivorship rights
• Creating or changing beneficiary designations
• Delegating authority granted under the POA to another person
• Waiving the principal's right to be a beneficiary of a joint or survivor annuity

A blanket grant of "all powers" does not satisfy this requirement. The principal must separately authorize each hot power, typically by initialing next to each specific grant. Documents without individual hot-power initials will be rejected by financial institutions when the agent attempts trust modifications, gifts for Medicaid spend-down, or beneficiary changes.

Agent Authority Structure (§ 28-68-301)

This section addresses co-agents and successors:

• Co-agents may act independently unless the document requires joint action
• If a co-agent is unable to serve, the remaining co-agents can act alone
• Successor agents step in only when the primary agent dies, resigns, or is declared incompetent
• The principal may designate how successors are activated

Agent Certification (§ 28-68-302)

An agent may present a notarized affidavit to third parties certifying that:

• The power of attorney is in full force and has not been revoked
• The agent's authority has not been terminated
• The principal is alive (if the agent has no actual knowledge otherwise)
• The agent is acting within the scope of powers granted

This certification functions as the state-approved mechanism for overcoming institutional hesitation. Banks that receive a valid Agent's Certification have reduced legal exposure for accepting the POA.

Mandatory Acceptance and Liability (§ 28-68-120)

The most practically powerful section for families facing bank rejection:

A person asked to accept an acknowledged statutory form power of attorney must either accept it or request within seven business days a certification of validity or an opinion of counsel that the POA is valid.

An institution that unreasonably refuses to accept a properly acknowledged statutory form is exposed to:

• A court order mandating acceptance
• Liability for the agent's reasonable attorney's fees and costs incurred in enforcing acceptance

The statute also provides safe harbors — an institution is not liable for refusal if:

• They've made a report to DHS Adult Protective Services regarding the agent
• They have actual knowledge that the POA is revoked
• The document is facially defective

Termination of Authority (§ 28-68-110)

A third party who acts in good faith reliance on a POA is protected until they receive actual notice that the authority has been terminated. "Constructive notice" (publishing a legal notice in the newspaper) is insufficient — the revoking principal must deliver written notice directly to each institution.

This section creates both a protection (institutions won't be punished for acting on a POA before receiving revocation) and an obligation (principals must affirmatively notify every party holding a copy).

Practical Application

Understanding these statutory provisions matters for one reason: they're your leverage. When a bank rejects your valid document, § 28-68-120 is your enforcement tool. When an institution demands proof the document is current, § 28-68-302 provides the state-approved solution. When someone challenges whether your POA survives incapacity, § 28-68-104 provides the presumption.

The Arkansas Power of Attorney Kit translates these statutory requirements into a practically executable document — with individual hot-power authorizations, recording-ready formatting, and the bank acceptance tools that reference the specific code sections protecting your authority.

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