§ 30-5-11-4.5 — Electronic power of attorney; witnesses; self-proving clauses; presence requirement

Indiana § 30-5-11-4.5

• Jurisdiction: Indiana
• Art. 5: POWERS OF ATTORNEY
• Ch. 11: Electronic Powers of Attorney

Text

5. (a) This section applies to an electronic
power of attorney executed in the presence of witnesses under section
4(a)(2) of this chapter on or after March 31, 2020.
(b) An electronic power of attorney executed in the presence of
witnesses under section 4(a)(2) of this chapter must be executed by the
signatures of the principal and at least two (2) witnesses on:
(1) an electronic power of attorney under subsection (c);
(2) a self-proving clause under section 4.7(c) of this chapter; or
(3) a self-proving clause under section 4.7(d) of this chapter.
(c) An electronic power of attorney may be attested as follows:
(1) The principal, in the presence of two (2) or more attesting
witnesses, shall signify to the witnesses that the instrument is the
principal's power of attorney and:
(A) sign the power of attorney;
(B) acknowledge the principal's signature already made; or
(C) at the principal's direction and in the principal's presence,
have someone else sign the principal's name.
(2) The attesting witnesses must sign in the presence of the
principal and each other.
An attestation or self-proving clause is not required under this
subsection for a valid power of attorney.
(d) If the principal and the attesting witnesses are not in each other's
physical presence when the electronic power of attorney is signed and
witnessed and if the principal and the witnesses use audiovisual
technology to satisfy the presence requirement in subsection (a), an
attorney or a directed paralegal must supervise the signing and the
witnessing of the electronic power of attorney.
(e) Within a reasonable time after an attorney or a directed paralegal
supervises the signing and witnessing of an electronic power of
attorney in the manner described in subsection (d), the attorney or
directed paralegal must sign an affidavit of compliance. An affidavit of
compliance under this subsection must be sworn to or affirmed by the
signing attorney or directed paralegal under the penalties of perjury and
must contain:
(1) the name and residential address of the principal;
(2) the name and:
(A) residential address; or
(B) business address;
for each attesting witness who signs the electronic power of
attorney;
(3) the address, city, and state in which the principal is physically
located at the time the principal signs the electronic power of
attorney;
(4) the city and state in which each attesting witness is physically
located when the witness signs the electronic power of attorney as
a witness;
(5) a description of the method and form of identification used to
confirm the identity of the principal to the witnesses and
supervising attorney or directed paralegal;
(6) a description of the method used by the supervising attorney
or paralegal, principal, and the witnesses for the purpose of
interacting with each other in real time during the signing
process;
(7) a brief description of the method used to add or capture the
electronic signature of the principal and the witnesses;
(8) the name, business or residential address, and telephone
number of the attorney or directed paralegal who supervised the
execution of the electronic power of attorney; and
(9) any other information that the supervising attorney or directed
paralegal considers to be material to:
(A) the principal's capacity to sign a valid power of attorney;
and
(B) the principal's and witnesses' compliance with subsection
(a).
After the attorney or directed paralegal signs an affidavit of compliance
under this subsection, the attorney or directed paralegal must preserve
an accurate copy of the signed affidavit with a scanned copy or
photocopy of the completely signed power of attorney. An affidavit of
compliance signed under this subsection is admissible as prima facie
evidence that the principal and witnesses executed the power of
attorney in counterparts that comply with the requirements of
subsection (c).
(f) An electronic power of attorney that is executed in substantial
compliance with subsection (c) will not be rendered invalid by the
existence of:
(1) an attestation or self-proving clause or other language; or
(2) additional signatures;
not required by subsection (c).
(g) An electronic power of attorney executed in accordance with
subsection (c) is self-proved if the witness's signatures follow an
attestation or self-proving clause or other declaration indicating, in
substance, the facts set forth in section 4.7(d) or 4.7(e) of this chapter.
(h) This section shall be construed to favor the effectuation of the
principal's intent to make a valid power of attorney.

Legislative History

As added by P.L.185-2021, SEC.28.