Colorado § 15-14-736 - Personal and family maintenance.

§ 15-14-736. Personal and family maintenance.

(1) Unless the power of attorney otherwise provides, language in a power of attorney granting general authority with respect to personal and family maintenance authorizes the agent to:

(a) Perform the acts necessary to maintain the customary standard of living of the principal, the principal's spouse, and the following individuals, whether living when the power of attorney is executed or later born:

(I) The principal's children;

(II) Other individuals legally entitled to be supported by the principal; and

(III) The individuals whom the principal has customarily supported or indicated the intent to support;

(b) Make periodic payments of child support and other family maintenance required by a court or governmental agency or an agreement to which the principal is a party;

(c) Provide living quarters for the individuals described in paragraph (a) of this subsection (1) by:

(I) Purchase, lease, or other contract; or

(II) Paying the operating costs, including interest, amortization payments, repairs, improvements, and taxes, for premises owned by the principal or occupied by those individuals;

(d) Provide normal domestic help, usual vacations and travel expenses, and funds for shelter, clothing, food, appropriate education, including postsecondary and career and technical education, and other current living costs for the individuals described in subsection (1)(a) of this section;

(e) Pay expenses for necessary health care and custodial care on behalf of the individuals described in paragraph (a) of this subsection (1);

(f) Act as the principal's personal representative pursuant to the federal "Health Insurance Portability and Accountability Act", sections 1171 to 1179 of the federal "Social Security Act", 42 U.S.C. sec. 1320d, as amended, and applicable regulations, in making decisions related to the past, present, or future payment for the provision of health care consented to by the principal or anyone authorized under the law of this state to consent to health care on behalf of the principal;

(g) Continue any provision made by the principal for automobiles or other means of transportation, including registering, licensing, insuring, and replacing them, for the individuals described in paragraph (a) of this subsection (1);

(h) Maintain credit and debit accounts for the convenience of the individuals described in paragraph (a) of this subsection (1) and open new accounts; and

(i) Continue payments incidental to the membership or affiliation of the principal in a religious institution, club, society, order, or other organization or to continue contributions to those organizations.

(2) Authority with respect to personal and family maintenance is neither dependent upon, nor limited by, authority that an agent may or may not have with respect to gifts under this part 7.

Source: L. 2009: Entire part added, (HB 09-1198), ch. 106, p. 407, § 1, effective April 9. L. 2017: (1)(d) amended, (SB 17-294), ch. 264, p. 1391, § 31, effective May 25.

OFFICIAL COMMENT

This section, based on Section 13 of the Uniform Statutory Form Power of Attorney Act, contains three important changes. The first is clarification in subsection (1) of who qualifies to benefit from payments for personal and family maintenance. Paragraph (1)(a) states that the individuals who may benefit include not only the principal's children and other individuals legally entitled to be supported by the principal, but also "individuals whom the principal has customarily supported or indicated the intent to support," "whether living when the power of attorney is executed or later born." This definition is broad enough to include common recipients of family support such as parents and later-born grandchildren if such support is intended by the principal.

The second important addition to Section 15-14-736 is the inclusion of paragraph (f) in subsection (1) which qualifies the agent to act as the principal's "personal representative" for purposes of the Health Insurance Portability and Accountability Act (HIPAA) so that the agent can communicate with health care providers in order to pay medical bills. See 45 C.F.R. § 164.502(g)(1)-(2) (2006) (providing that for purposes of disclosing an individual's protected health information, "a covered entity must . . . treat a personal representative as the individual"). Section 15-14-736 does not, however, empower the agent to make health-care decisions for the principal. See Section 15-14-703 and comment (discussing exclusion from this Act of powers to make health-care decisions).

The third important addition to this section is subsection (2) which provides that authority under Section 15-14-736 is neither dependent upon, nor limited by, authority that an agent may or may not have with respect to making gifts. Although payments made for the benefit of persons under Section 15-14-736 may in fact be subject to gift tax treatment, subsection (2) clarifies that the authority for personal and family maintenance payments by an agent emanates from this section rather than Section 15-14-740. This is an important distinction because the Act requires a grant of specific authority under Section 15-14-724(1) to authorize gift making, and the default provisions of Section 15-14-740 limit the amounts of those gifts. The authority to make payments under Section 15-14-736 is not constrained by either of these provisions.

ANNOTATION

Because one of the powers exercised by defendant under father's power of attorney, dealing with personal and family maintenance, required him to maintain father's standard of living, he had a legal duty to exercise that power with due care for father's benefit. Defendant was convicted of second degree assault and causing serious bodily injury to an at-risk adult by criminal negligence when, despite defendant's medical training, defendant failed to respond to father's worsening condition, left father bedridden for a significant length of time without proper change of clothing, toileting, or hygiene, failed to seek professional care for father, and verbally abused father, causing him to fear defendant. People v. Madison, 176 P.3d 793 (Colo. App. 2007) (decided under former § 15-1-1314).