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S.B. 1006 Enrolled

                 

UNIFORM PROBATE CODE - POWER OF

                 
ATTORNEY AMENDMENTS

                 
2001 FIRST SPECIAL SESSION

                 
STATE OF UTAH

                 
Sponsor: John L. Valentine

                  This act modifies a section of the Probate Code to provide that a person holding a power of
                  attorney for a disabled principal may be held accountable by the principal's heirs. This act
                  becomes effective immediately.
                  This act affects sections of Utah Code Annotated 1953 as follows:
                  AMENDS:
                      75-5-501, as last amended by Chapter 375, Laws of Utah 2001
                  Be it enacted by the Legislature of the state of Utah:
                      Section 1. Section 75-5-501 is amended to read:
                       75-5-501. Power of attorney not affected by disability or lapse of time -- Agent
                  responsibilities.
                      (1) Whenever a principal designates another his attorney-in-fact or agent by a power of
                  attorney in writing and the writing contains the words "This power of attorney shall not be affected
                  by disability of the principal," or "This power of attorney shall become effective upon the disability
                  of the principal," or similar words showing the intent of the principal that the authority conferred
                  shall be exercisable notwithstanding his disability, the authority of the attorney-in-fact or agent is
                  exercisable by him as provided in the power on behalf of the principal notwithstanding:
                      (a) later disability or incapacity of the principal at law or later uncertainty as to whether the
                  principal is dead or alive; or
                      (b) the lapse of time since the execution of the instrument, unless the instrument states a
                  time of termination.
                      (2) If an attorney-in-fact or agent determines that the principal has become incapacitated
                  or disabled and the power of attorney by its terms remains in effect or becomes effective as a result
                  of a principal's incapacity or disability, the attorney-in-fact or agent shall:
                      (a) notify all interested persons of his status as the power of attorney holder within 30 days


                  of the principal's incapacitation, and provide them with his name and address;
                      (b) provide to any interested persons upon written request, a copy of the power of attorney
                  and a statement of the assets to which the power of attorney applies;
                      (c) provide to any interested persons upon written request, an annual accounting of the assets
                  to which the power of attorney applies; and
                      (d) notify all interested persons upon the death of the principal.
                      (3) All interested persons shall be notified within ten days if the attorney-in-fact or agent
                  changes. The notification shall be made by the new attorney-in-fact or agent who shall then be
                  accountable to the interested persons in accordance with Subsection (2).
                      [(2)] (4) All acts done by the attorney-in-fact or agent pursuant to the power during any
                  period of disability or incompetence or uncertainty as to whether the principal is dead or alive have
                  the same effect and inure to the benefit of and bind the principal or his heirs, devisees, and personal
                  representative as if the principal were alive, competent, and not disabled. If a conservator thereafter
                  is appointed for the principal, the attorney-in-fact or agent, during the continuance of the
                  appointment, shall account to the conservator rather than the principal. The conservator has the same
                  power the principal would have had if he were not disabled or incompetent to revoke, suspend, or
                  terminate all or any part of the power of attorney or agency.
                      [(3) If a power of attorney remains in effect or becomes effective as a result of a principal's
                  incapacity or disability, the attorney-in-fact or agent holding the power of attorney shall be bound by
                  the duties, liabilities, and standard of care in Title 75, Chapter 7, Part 3, Duties and Liabilities of
                  Trustees.]
                      [(4) In applying the duties, liabilities, and standard of care of Part 3, Duties and Liabilities
                  of Trustees, to this section: (a) "beneficiary"]
                      (5) For the purposes of this section, "interested person" means any person entitled to a part
                  of the principal's estate from the principal's will or through the intestacy laws, whichever is
                  applicable[; and].
                      [(b) "trust" means that part of the principal's estate which is covered or controlled by the
                  power of attorney.]

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                      Section 2. Effective date.
                      If approved by two-thirds of all the members elected to each house, this act takes effect upon
                  approval by the governor, or the day following the constitutional time limit of Utah Constitution
                  Article VII, Section 8, without the governor's signature, or in the case of a veto, the date of veto
                  override.

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