Power of Attorney

A power of attorney (POA) is an authorization to act on someone else’s behalf in a legal or business matter. The person authorizing the other to act is the principal, grantor or donor (of the power), and the one authorized to act is the agent or the attorney-in-fact. A Utah estate planning lawyer can help you draft this instrument.

In Utah, like in many jurisdictions, the power of attorney is an important document that is utilized as part of a person’s estate plan.  It can afford protection to a person and his or her family by providing an agent with the power to engage in financial and other transactions for another in situations such as a person’s absence due to travel or where a person is incapacitated as a result of an illness or accident.  The power of attorney can insure that important decisions and actions do not have to be delayed or opportunities lost in such event.  Court proceedings to appoint a Guardian can also sometimes be avoided.

However, powers of attorney have been a source of financial abuse and overreaching.  Persons appointed as agents have fiduciary duties and responsibilities and the selection of an agent should be done only after full consideration of a person’s qualifications, integrity and sincerity.

The Utah Power of Attorney statutes are contained in the Utah General Obligations Law commencing at Section 5-1501. The power of attorney must be signed by the principal and acknowledged by a notary.  It must also be signed and dated by the agent and also acknowledged by a notary.  The typical power is known as a Durable Power of Attorney which means that the power or authority of the agent is not terminated if the principal becomes incapacitated.  The durable nature of the power allows the agent to act for someone who becomes incapacitated and thereby avoids the need for a Guardianship Proceeding regarding the person’s property management.  In cases where a person does not have a valid Power of Attorney the Court may need to appoint a property management Guardian under Article 81 of the Utah Mental Hygiene Law.  The property management Guardian will have the power to access and transfer an incapacitated person’s assets such as bank accounts, brokerage accounts and real estate.

There are numerous types of authority that an agent may be given by the power.  These include the authority to act in real estate transactions, banking transactions, business operating transactions and insurance transactions.

It is always important for a person to consult with a Utah lawyer regarding the appropriate authority and designation of agents to be provided in the document.  It should also be noted that a power of attorney terminates when a person dies.  Thereafter, only a duly appointed fiduciary such as an Executor or Administrator can act on behalf of the decedent’s estate.   A power of attorney can also be revoked prior to death.

Having an Estate Beneficiary

In most situations, selecting a beneficiary and providing for him or her in your Will may be straightforward.  However, some situations require particular attention.  It is rather common that an intended beneficiary is affected by a disability.  This condition may be physical or psychological and the beneficiary can be incapacitated and unable to manage his own affairs.  Moreover, such person may be receiving government benefits such as Medicaid or Social Security disability and a bequest from an estate might curtail or cut-off such benefits.  This scenario may require the use of a Supplemental Needs Trust (SNT) to hold and administer the assets for the benefit of the disabled beneficiary. The SNT provisions can be set up in a Last Will and are meant to provide the use of the funds for the beneficiary while not interfering with his receipt of government benefits.

An estate beneficiary lawyer in Utah, like those in other parts of Utah, are familiar with the Estates, Powers and Trusts Law.  Section 7-1.12 of this statute provides the requirements for a SNT.

It is not uncommon for a beneficiary to learn that the decedent signed a new Will shortly before death that changed his estate plan from that in an earlier Will.  Where a beneficiary’s interest appears to be at risk by a Will whose validity is in doubt, there may be a basis to file Objections to a Will.  Estate Litigation involving Will contests can be very complex and the assistance of an experienced Probate attorney can be helpful.

There are situations where the language of a Will or Trust is ambiguous or confusing and the Court may be asked to clarify or interpret these provisions. Also, when an Executor or Administrator is preparing to distribute funds to a beneficiary, the fiduciary typically prepares an accounting for the beneficiary to review and approve.

Free Consultation with a Utah Estate Lawyer

If you are here, you probably have an estate issue you need help with, call Ascent Law for your free estate law consultation (801) 676-5506. We want to help you.