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Power of Attorney

This is a general description of powers of attorney under Utah law. It is not meant to answer all possible questions concerning powers of attorney.

Utah's Uniform Power of Attorney Act went into effect on May 10, 2016. The law applies to a power of attorney created before, on, or after that date, and to any judicial proceeding concerning a power of attorney commenced on or after that date. Powers of attorney properly executed under prior law are still valid documents.

 

What is a power of attorney?

A power of attorney is a legal document in which one person (called the "principal") gives to another person (the "agent," or sometimes called the "attorney in fact") authority to act on behalf of the principal.

A power of attorney can be very broad, allowing the agent to perform a variety of tasks. For example:

  • handling bank accounts
  • selling real property
  • running a business
  • applying for public benefits

It can also be very limited and restrict the agent to one or more very specific tasks. For example, selling one specific piece of real property. The agent cannot use the principal's assets in a way that is against the principal's wishes.

A well-written power of attorney can be a helpful legal tool to allow someone else to handle a person's financial matters without the need of more complex arrangements like a trust or a court-appointed guardian or conservator, which removes many or all of the person's decision making authority. A well-written power of attorney can also help protect against possible financial exploitation and abuse.

A lawyer experienced in estate planning is the most appropriate person to write a power of attorney and give you advice about what is needed in your situation. There are many power of attorney forms available on the Internet but they may be too general for your circumstances, they may not follow the requirements of Utah law, and they may not protect against financial exploitation and abuse.

Utah law provides a statutory power of attorney form (the Uniform Power of Attorney Act, Utah Code 75-9-101 to 403). The form can be used by any adult who has the capacity to complete it. At the time of signing the power of attorney, the principal must have sufficient mental capacity to understand that s/he is appointing an agent to handle his or her affairs. The principal does not have to understand how the agent will manage the principal's affairs.

 

The agent

The agent is the person appointed by the principal to handle the duties stated in the power of attorney document. The agent must act at all times for the benefit of the principal and not for him or herself.

A principal can appoint more than one agent and have two co-agents, for example. Unless the power of attorney states otherwise, each co-agent may exercise their authority independently.

In addition, a principal can nominate a successor agent or agents to step in if the first agent resigns, dies, becomes incapacitated, is not qualified to serve, or declines to serve.

An agent has fiduciary duties. This means that the agent must do the following:

  • Respect the principal's wishes and act only in his or her best interests.
  • Involve the principal in the decision making as much as possible.
  • Manage all assets carefully and remember that the assets belong to the principal.
  • Keep good records of everything spent or received.
  • Keep separate the principal's funds.
  • Act only within the scope of authority granted in the power of attorney.
  • Comply with the terms of the power of attorney.

See Utah Code Section 75-9-114 for the full list of an agent's duties.

A principal may also nominate in the power of attorney a conservator or guardian to be appointed by the court if the principal is ever determined to be incapacitated. The nomination may be of the agent under the power of attorney or of someone else.

The power of attorney gives the agent specific authority to act on behalf of the principal. The areas of authority can be general, specific or limited. The statutory power of attorney form provides a checklist for the principal to use to designate the extent of the agent's authority.

The agent also has the authority under HIPAA (the federal Health Insurance Portability and Accountability Act) to access the principal's private health care information and communicate with the principal's heath care providers unless the power of attorney specifically restricts that authority.

The power of attorney does not authorize the agent to make health care decisions for the principal. See the web page on Utah's Advance Health Care Directive Act for more information and forms.

The agent may sign an Agent's Certification form. See the statutory form in the Forms section below.

 

Executing a power of attorney under Utah law

The power of attorney document must be signed by the principal before a notary public. If the principal is not able to physically sign the document, then another person acting at the principal's direction in the principal's conscious presence may sign the document before a notary public.

If the principal lives or is about to live in a hospital, assisted living, skilled nursing, or similar facility, at the time of execution of the power of attorney, the principal may not name any agent that is the owner, operator, health care provider, or employee of the hospital, assisted living facility, skilled nursing, or similar residential care facility unless the agent is the spouse, legal guardian, or next of kin of the principal, or unless the agent's authority is strictly limited to the purpose of assisting the principal to establish eligibility for Medicaid.

 

Durability

"Durable" power of attorney means that the agent can act even if the principal becomes disabled or incapacitated. A power of attorney created under Utah law is durable unless it expressly states that it is terminated by the incapacity of the principal.

 

Effective date

A power of attorney goes into effect when the principal signs it unless the document says that the power of attorney becomes effective at a future date or when a specific event occurs. For example, the principal may say that the power of attorney becomes effective upon the principal's incapacity and that the principal's physician determines the incapacity.

 

Changing, revoking and terminating a power of attorney

A principal can revoke or change a power of attorney at any time. The change must comply with all of the requirements of the original power of attorney document. It must be in writing, signed and should be notarized, and, at the time of the change, the principal must understand that s/he is appointing an agent to handle his or her affairs.

The revocation also should be in a dated and signed writing, but it does not need to be notarized. The agent must receive a copy of the revocation. Any third party who has relied on the agent's authority under an earlier power of attorney also should receive a copy of the revocation as well as of any changed power of attorney.

A power of attorney terminates under any of these circumstances:

  • The principal dies.
  • Upon the principal's incapacity if the power of attorney is not durable.
  • The principal revokes the power of attorney.
  • The power of attorney provides that it terminates.
  • The purpose of the power of attorney is accomplished.
  • The principal revokes the agent's authority or the agent dies, becomes incapacitated, or resigns, and the power of attorney does not provide for another agent to act under the power of attorney.

An agent's authority terminates when:

  • The principal revokes the authority;
  • the agent dies, becomes incapacitated, or resigns;
  • an action is filed for the dissolution or annulment of the agent's marriage to the principal or their legal separation, unless the power of attorney otherwise provides; or
  • the power of attorney terminates.

 

Important points to remember

  • You can't get a power of attorney over someone: it has to be given to you.
  • The person creating the power of attorney (the principal) must have the legal capacity to understand the authority being delegated.
  • Agents have authority to do only those things that are given to them.
  • Agents must make decisions the way the person giving the authority wants, not the way they would do for themselves.

 

Forms

  • 1235XX
  • 1236XX
  • 1237XX

 

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