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

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