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Durable Power of Attorney

Durable power of attorney documents are legal documents by which a person authorizes another to act on the person’s behalf. Typically, the durable power of attorney documents relate to financial or business transactions such as real estate or banking transactions.  The durable power of attorney documents are provided by Utah statutes and the rules regarding the creation and use of the power must be followed for the power to be effective. A Utah estate planning lawyer can help make sure that you meet the requirements.

Durable Power of Attorney

The power of attorney can be broad in scope, giving an agent the ability to make any and all decisions, or you can limit the agent’s authority by specifying the types of decisions the agent can make. Durable means that the power of attorney remains in effect when, and if, you become incapacitated.  Also, the selection of the agent or attorney-in-fact to carry out or utilize the power is important.  The agent must be trustworthy so that the use of the power is not abused.

Choosing an agent to act for you in a power of attorney is important.  The utmost consideration is that you have full faith and trust in the agent.  Typically, an agent is a close family relative such as a spouse or child.  It is important to remember that the agent using a power of attorney will be acting when the principal may be incapacitated and cannot override the agent’s decision.  Since this is the intent of the durable power it is also essential that the agent recognize and accept his duties.  When a person names someone to act under the power it makes sense to ask that person first if he is willing to accept the responsibility. In the recently revised Utah Statutory Power form, the agent must also sign the power and have his signature notarized and acknowledge that he understands that he is accepting the obligations and tasks assigned.

There are numerous instances in Court where a person appointed as an agent under a power abuses his authority.  The agent acting under a Power of Attorney is viewed as having a confidential relationship with the creator.  In view of this confidential relationship, any transfers by the agent of the creator’s property to the agent will be viewed by the Courts as improper.  Problems arise in Utah and elsewhere when agents act without any oversight.  This is common with older individuals who give agents powers. In many instances there are no other family members or friends around to have oversight and to prevent the abuse of the power and the victimization of the creator.  When these situations arise, the result is Guardianship litigation or Estate litigation.

Wills – Undue Influence

Wills can be contested on a number of grounds including that the testator was incompetent to make a will at the time of signing it or the signing of the will was subject to Undue Influence (e.g., coercion, manipulation, deception, compulsion, intimidation, etc.). A good Utah contested wills attorney with experience in estates and wills can help prevent such problems.

Undue influence is typically not easy to demonstrate.  Essentially, it must be shown that the person signing the Will, the testator, set forth provisions that were against his free will and his desired intentions.  Generally, the testator must be shown to have been unable to counteract the influence due to illness or other factors that caused him to be too weak or unable to make his own choices.  It is commonly noted that to demonstrate undue influence, an objectant needs to show that the wrongdoer had opportunity, motive and that undue influence was actually practiced.  Undue influence will usually not be found just because a beneficiary was kind to a person in his old age or simply asked to be made a Will beneficiary.  However, there are certain situations where a Court will infer the existence of such influence.  Such instances occur where persons in a confidential relationship with testator are made beneficiaries.  For example, where the attorney who drafts the testator’s Will is also named as a Will beneficiary.  Situations where a person who has a power of attorney and end up as a Will beneficiary may also provide the basis for such inference.

Contesting a Will in Utah
requires that the Court be provided with very specific information that can demonstrate that a Will should be ignored.  Since the testator is now deceased, Courts tend to want to follow the provisions that are set forth in a written Will unless it is clear that the document should be rejected.

Free Consultation with a Durable Power of Attorney Lawyer

When you need legal help with a durable power of attorney, call Ascent Law for your free consultation (801) 676-5506. We want to help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506

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