Finance
Instrument: Power of Attorney (POA)
What is it for?
The “power of attorney” (POA) allows an adult (the “principal”) to grant another (the “agent”) the authority to make decisions concerning the principal’s property on the principal’s behalf.
What does it do?
A POA empowers the agent to make decisions and act with respect to the principal’s property. The POA does not include the power to make health care decisions. Utah Code Ann. § 75-9-103(2).
In doing so, the agent must not exceed the scope of authority in the POA, must act with due care and in good faith and consistent with the principal’s reasonable expectations for managing the principal’s property, and must avoid conflicts of interest, among other duties. Utah Code Ann. § 75-9-114.
A POA is presumed to be durable, which means that the agent’s authority continues despite the principal’s incapacity, unless otherwise stated in the POA document. Utah Code Ann. § 75-9-104.
Third parties generally may rely on a notarized POA to accept the agent’s decisions made on behalf of the principal as if the principal had made them. Third parties may also ask that the agent provide certain assurances, including a certification of the POA’s validity. Utah Code Ann. § 75-9-119.
How does one make it?
A POA must be in writing, signed by the principal or in the principal’s conscious presence by another, and notarized. Utah Code Ann. § 75-9-105(1).
When does it come into effect?
The agent’s authority becomes effective immediately unless the POA states that it becomes effective at a future date, such as when the principal becomes incapacitated. Utah Code Ann. § 75-9-109(1). This latter type is sometimes called a “springing” POA. For a springing POA, the principal may designate one or more persons to determine that the future date, occurrence, or event has occurred in writing. Utah Code Ann. § 75-9-109(2).
If a springing POA becomes effective on the principal’s incapacity, and the principal has not designated a person to make this determination, a physician may do so. Utah Code Ann. § 75-9-109(3)(a). A physician must determine that the principal is unable to manage their property or business affairs due to an impairment in the principal’s ability to receive and evaluate information or make or communicate decisions even with the use of technological assistance. Utah Code Ann. § 75-9-102(5)(a).
How long does it last?
A POA generally ends only if the principal or agent dies, the POA itself provides that it ends on some future date or event, the POA’s purpose is accomplished, or the principal revokes it. If the POA is not durable, then the POA also ends if the principal becomes incapacitated. Utah Code Ann. § 75-9-110.
How does one end it?
A principal may revoke a POA by either a method provided in the POA itself for revoking it or any method manifesting clear and convincing evidence of the principal’s intent to revoke. Utah Code Ann. § 75-9-110(7).
What does an example look like?
An optional statutory form is available at Utah Code Ann. § 75-9-301. The optional agent’s certification form is available at Utah Code Ann. § 75-9-302.
What else should one know?
Utah’s POA is based on the Uniform Power of Attorney Act.
Last updated June 2022
Education
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Health
Instrument: Health Care Power of Attorney (HCPOA)
What is it for?
An HCPOA allows an adult (the “declarant”) to appoint another person (the “agent”) to make the health care decisions for the declarant in the event of the declarant’s incapacity. The HCPOA is one kind of “advance health care directive” (AHCD) and may or may not include directions for the declarant’s care when they lack health care decision making capacity. Utah Code Ann. § 75-2a-107.
What does it do?
An HCPOA allows an agent to make decisions about the declarant’s care, treatment service or procedure made to improve, maintain, diagnose, or otherwise affect their physical or mental being while the declarant lacks health care decision making capacity. These include decisions about selection and discharge of a health care provider and a health care facility; approval or disapproval of diagnostic tests, procedures, programs of medication, and orders not to resuscitate; and withholding or withdrawing life-sustaining treatment. However, decisions about an adult’s financial affairs or social interactions other than as indirectly affected by the health care decision are excluded. Utah Code Ann. § 75-2a-103.
The agent’s decisions must be based on input from the declarant, to the extent possible, as well as the declarant’s specific preferences expressed while having capacity. Utah Code Ann. § 75-2a-102(d).
How does one make it?
An adult may make an HCPOA either orally or in writing so long as it is witnessed by a “disinterested” adult, as defined by Utah Code Ann. § 75-2a-107.
The declarant must have the “capacity to appoint an agent” for the HCPOA to be valid. Utah Code Ann. § 75-2a-103(6). All adults are presumed to have capacity to do so, although a health care provider, attorney or court may determine the adult lacks this capacity. When determining whether an adult has the capacity to appoint an agent, a health care provider, attorney or court must consider if the adult’s choice of agent is consistent with past relationships and patterns of behavior and also if the adult has previously expressed an intent to appoint the same person as agent in circumstances where the adult has demonstrated the greatest ability to make and communicate decisions. Utah Code Ann. § 75-2a-105.
Note that a declarant who is determined to lack health care decision making capacity may nevertheless retain the capacity to appoint an agent. Utah Code Ann. § 75-2a-105(2)(b).
When does it come into effect?
Unless the HCPOA states otherwise, the agent’s authority becomes effective only after a physician, physician’s assistant, or advanced practice registered nurse (APRN) determines that the declarant lacks “health care decision making capacity.” Utah Code Ann. § 75-2a-104. “Health care decision making capacity” means an adult’s ability to make an informed decision about receiving or refusing health care, including the ability to understand the nature and consequences of health status, to make rational evaluations regarding accepting or rejecting health care, and to communicate decisions. Utah Code Ann. § 75-2a-103(13). The declarant may challenge this determination either orally or in writing. Utah Code Ann. § 75-2a-104.
An adult with health care decision making capacity retains the right to make health care decisions as long as the adult has health care decision making capacity. Utah Code Ann. § 75-2a-103.
How long does it last?
The HCPOA lasts until: a declarant disqualifies an agent or revokes the advance health care directive; a health care provider finds that the declarant has regained their health care decision making capacity; or a court issues an order invalidating a health care directive. Utah Code Ann. § 75-2a-114.
How does one end it?
A declarant may revoke an HCPOA by writing “void” across the form, either destroying the HCPOA document or directing another person to do the same on the declarant’s behalf, or by signing a written revocation or directing another person to sign it on the declarant’s behalf. Also, a declarant may revoke their HCPOA orally, by stating their wish to revoke the HCPOA in the presence of an eligible adult witness who signs and dates a written document confirming the principal’s statement. Finally, a subsequent HCPOA revokes a prior HCPOA to the extent that they conflict. Utah Code Ann. § 75-2a-114.
What does an example look like?
Utah provides an optional statutory AHCD form, Part I of which can be used to create an HCPOA, at Utah Code Ann. § 75-2a-117.
What else should one know?
Utah also recognizes a “Declaration for Mental Health Treatment” at Utah Code Ann. § 62A-15-1002.
Last updated June 2022
General
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