In our previous post, we started discussing how those seeking to create a comprehensive estate plan — meaning one that addresses the possibility of both their untimely demise and their sudden incapacity — must consider the execution of everything from guardianships and health care directives to beneficiary designations and, of course, powers of attorney.
To that end, we began taking a closer look at the power of attorney, an invaluable estate planning document that enables a person — the principal — to vest another person — the agent — with the authority to act on their behalf in legal and/or financial matters. We’ll continue this examination in today’s post.
What are the requirements for executing a power of attorney in Utah?
In general, there are two very important requirements that must be met in order for a power of attorney to be considered valid in Utah.
First, the principal must not be lacking the necessary mental capacity to comprehend that signing the document will result in the agent being able to manage some aspects of their financial and/or legal affairs.
Second, the principal must sign the power of attorney in the presence of a notary public. In the event the principal is lacking the physical ability to sign the document, the law dictates that it is permissible for another person, acting at the principal’s direction and in their conscious attendance, to sign the document in the front of a notary public.
Who can a principal appoint to serve as their agent in the power of attorney?
In theory, a principal could appoint one agent or two co-agents in the power of attorney, and name a successor agent or agents in the event of the first agent’s death, incapacity or resignation.
One noteworthy restriction, however, is that if a principal is about the establish a residence in or already resides in an assisted living community, hospital, nursing home or similar facility, they may not name an operator, owner, health care provider or employee of any of these establishments as an agent — unless they are a spouse, legal guardian or relative. Such an arrangement would also be permissible where the authority of the agent was confined to helping the principal with Medicaid eligibility.
We’ll continue this important discussion in future posts, discussing more about the fiduciary duties of the agent. In the meantime, consider speaking with a skilled legal professional if you would like to learn more about executing a power of attorney or creating a comprehensive estate plan.