Indiana Code 30-5-11-4.5. Electronic power of attorney; witnesses; self-proving clauses; presence requirement
(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:
Terms Used In Indiana Code 30-5-11-4.5
- Affidavit: A written statement of facts confirmed by the oath of the party making it, before a notary or officer having authority to administer oaths.
- Affirmed: In the practice of the appellate courts, the decree or order is declared valid and will stand as rendered in the lower court.
- Attorney: includes a counselor or other person authorized to appear and represent a party in an action or special proceeding. See Indiana Code 1-1-4-5
- Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.
- Power of attorney: A written instrument which authorizes one person to act as another's agent or attorney. The power of attorney may be for a definite, specific act, or it may be general in nature. The terms of the written power of attorney may specify when it will expire. If not, the power of attorney usually expires when the person granting it dies. Source: OCC
(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.
As added by P.L.185-2021, SEC.28.