More Power To You: Utah’s New Power of Attorney Law
Terry Jessop & Bitner Newsletter
Issue 33, June 2016
At the law firm of Terry Jessop & Bitner we have several attorneys at law. However, almost anyone can be an attorney in fact. An attorney in fact is a legal term for the person you designate to act on your behalf under a power of attorney (“POA”). Many POAs are general in nature, meaning your designated attorney in fact steps into your shoes and has all the power and authority you do. However, POAs can also be limited to a specific power, transaction or time period. In the past, Utah had a relatively basic POA law. Now, with the passage of the Uniform Power of Attorney Act, we have a fully-loaded law with all the bells and whistles.
Carrots and Sticks
Utah’s old law did not penalize anyone who disregarded a properly presented POA, even if it was acknowledged (i.e., notarized). Essentially, a POA was only good if the person to whom it was presented decided it was good. This is not the case under the new law. The new law takes a “carrot and stick” approach to encourage the acceptance of a POA. Unless you fall under one of six exceptions, you must accept an acknowledged POA within seven business days or you may be liable for attorney’s fees and costs in an action to confirm the validity of the POA.
Along with added liability for rejecting a valid POA, the new law gives some options if you have questions about the POA. You may request a certification, translation (if it’s in another language), and/or an opinion of counsel. If the request is made before seven business days, then the items must be provided at the principal’s expense. After receiving the requested items, you have five business days to accept the acknowledged POA. Without further investigation, you may rely upon the agent’s certification of any factual matter, the translation, or the opinion of counsel as to any matter of law concerning the POA in determining to accept the POA. Also, if you accept an acknowledged POA in good faith, without actual knowledge that it is invalid, you may rely upon the presumption that the signature of the principal is genuine and the POA is valid.
Accept or Except
You are required to accept an acknowledged POA unless: (1) you, under the same circumstances, would not be required to deal with the principal; (2) the transaction is inconsistent with the law; (3) you have actual knowledge that the POA has been terminated; (4) a request for a certification, translation or an opinion of counsel is refused; (5) you believe in good faith that the POA is not valid; or (6) you know that a person has made a report to the Division of Aging and Adult Services stating that the principal may be subject to physical or financial abuse, neglect, exploitation, or abandonment by the attorney in fact. If you do not fall into one of these exceptions, your safest course of action is to accept the POA.
No More D.O.A. P.O.A.
Utah’s new POA law gives some teeth to powers of attorney that the old law simply did not have. Now if you are presented with a power of attorney you must accept it, find an exception, or face the risk of liability and having to pay the other side’s attorney fees. If you need a legal opinion related to a power of attorney or need assistance in preparing one, please contact us.
© Terry Jessop & Bitner June 2016