A Utah durable power of attorney form allows an individual to appoint an agent to manage their financial matters throughout their lifetime. All interested parties should presume it’s durable unless the document states otherwise.
The principal needs to sign, date, and have the form notarized. If the agent receives authority from the principal, they can conduct many financial matters the principal can, barring any restrictions the principal implements.
Laws
- Statute: Chapter 75-9 Part 1 – 4 (Uniform Power of Attorney Act).
- Presumed Durable: Yes (§ 75-9-104).
- Signing Requirements: Signature required. Witnesses are not required by law (§ 75-9-105)
- Notarization: A signature is authentic if signed in front of a notary public or authorized official.
- Statutory Form: Yes (§ 75-9-301).
Definitions
Durable – “Durable,” when pertaining to a POA, means not terminated by the principal’s incapacity (§ 75-9-102(2)).
Power of Attorney – “Power of attorney” means a writing or other record that grants authority to an agent to act in the principal’s place. The principal may or may not use the term power of attorney, but the definition still applies (§ 75-9-1052(7)).
Specific Powers and Limitations
Restrictions on Gifts and Transfers
You can find the restrictions on types of gifts and the considerations an agent must make in § 75-9-217:
Types of Gifts
- Outright gifts: A gift can go directly to someone, and the agent can give as much as the law allows without paying extra taxes on gifts each year. If the principal who owns the property is married, and their spouse agrees, the agent can contribute double that amount.
- For the benefit of another person: A gift for another person’s benefit may include a special savings account for children, like the ones mentioned in the Uniform Transfers to Minors Act. It may also include money the agent puts into a 529 plan for a child’s future education.
- Gift splitting: The agent may agree to share the responsibilities for a gift that the principal’s spouse has given, allowing the agent (on behalf of the principal) and the principal’s spouse to give more together without paying extra taxes.
Considerations
- How valuable the principal’s property is
- Whether the principal has any foreseeable obligations or maintenance needs
- Strategies for minimizing taxes, including inheritance, income, and gift taxes
- Whether the principal has made or joined in making gifts in the past
- Whether the principal is eligible for assistance, a program, or a benefit under a state regulation
Agent’s Authority Limitations
Any agent should act in good faith, comply with the DPOA’s terms, act within their granted authority, and make decisions based on the principal’s reasonable expectations (§ 75-9-114). If the agent doesn’t know the principal’s expectations, they should do everything they can to act in the principal’s best interest.
Unless the document states otherwise, the agent should only make decisions that benefit themselves or someone they owe support to if they’re a descendant, ancestor, or spouse of the principal (§ 75-9-201). The principal may make an exception by stating it directly in the document.
Safekeeping and Registration
If you grant your agent “real property” powers, meaning you’re allowing them control over your real estate matters, you should record the document in your county’s land records office. Ideally, the document should reside in the county where you own real estate or anticipate dealing with real estate matters later.
You and the agent may also store it in additional places for added security. For example, you can ask a trusted attorney to store copies or keep them in a safe deposit box.
Additional Resources
- The Judicial Branch of Utah: Provides a fact sheet on POAs.
- Utah State Bar: Has information to help people seek legal advice.
- Utah Legal Services: Offers legal services to disadvantaged individuals.
