H.B. 349

1

UNIFORM PROBATE CODE - POWER OF
2 ATTORNEY AMENDMENTS
3 2001 GENERAL SESSION
4 STATE OF UTAH
5 Sponsor: Patricia W. Jones
6 This act modifies sections of the Probate Code S [ h [ ] to allow for the appointment of a
6a conservator
7 for a person who is disabled even though there may be a valid power of attorney in force [ ] h ] s .
8 This act S [ h [ ] also [ ] h ] s provides that the person holding the power of attorney should be bound
8a by the
9 same standards for trustees.
10 This act affects sections of Utah Code Annotated 1953 as follows:
11 AMENDS:
12 h h [ [ ] 75-5-401, as last amended by Chapter 142, Laws of Utah 1999 [ ] ] h h
13 75-5-501, as last amended by Chapter 179, Laws of Utah 1992
14 Be it enacted by the Legislature of the state of Utah:
15 h h [ [ ] Section 1. Section 75-5-401 is amended to read: [ ] ] h h
16 h h [ [ ] 75-5-401. Protective proceedings.[ ] ] h h
17 S [ h [ ] (1) Upon petition and after notice and hearing in accordance with the provisions
17a of this
18 part, the court may appoint a conservator or make other protective order for cause as follows:
19 (a) Appointment of a conservator or other protective order may be made in relation to the
20 estate and affairs of a minor if the court determines that a minor owns money or property that
21 requires management or protection which cannot otherwise be provided, has or may have business
22 affairs which may be jeopardized or prevented by minority, or that funds are needed for the
22a minor's
23 support and education and protection is necessary or desirable to obtain or provide funds.
24 (b) The provisions of Subsection (1)(a) may be applied to a person beyond minority up to
25 age 21 under special circumstances as determined by the court.
26 (2) Appointment of a conservator or other protective order may be made in relation to the
27 estate and affairs of a person if the court determines that the person: [ ] h ] s
28 S [ h [ ] (a) is unable to manage the person's property and affairs effectively for reasons such as
29 mental illness, mental deficiency, physical illness or disability, chronic use of drugs, chronic
30 intoxication, confinement, detention by a foreign power, or disappearance; and
31 (b) has property which will be wasted or dissipated unless proper management is provided
32 or that funds are needed for the support, care, and welfare of the person or those entitled to be
33 supported by the person and protection is necessary or desirable to obtain or provide funds. [ ] h ] s
34 h [ [ ] (3) Appointment of a conservator or other protective order may not be denied solely on
35 the basis that the person for whom the conservatorship or other protective order is sought has a
36 valid power of attorney in effect. [ ] ] h h
37 Section h h [ [ ] 2. [ ] ] [ 1. ] h h Section 75-5-501 is amended to read:
38 75-5-501. When power of attorney not affected by disability or lapse of time.
39 (1) Whenever a principal designates another his attorney-in-fact or agent by a power of
40 attorney in writing and the writing contains the words "This power of attorney shall not be affected
41 by disability of the principal," or "This power of attorney shall become effective upon the disability
42 of the principal," or similar words showing the intent of the principal that the authority conferred
43 shall be exercisable notwithstanding his disability, the authority of the attorney-in-fact or agent is
44 exercisable by him as provided in the power on behalf of the principal notwithstanding:
45 (a) later disability or incapacity of the principal at law or later uncertainty as to whether
46 the principal is dead or alive; or
47 (b) the lapse of time since the execution of the instrument, unless the instrument states a
48 time of termination.
49 (2) All acts done by the attorney-in-fact or agent pursuant to the power during any period
50 of disability or incompetence or uncertainty as to whether the principal is dead or alive have the
51 same effect and inure to the benefit of and bind the principal or his heirs, devisees, and personal
52 representative as if the principal were alive, competent, and not disabled. If a conservator
53 thereafter is appointed for the principal, the attorney-in-fact or agent, during the continuance of the
54 appointment, shall account to the conservator rather than the principal. The conservator has the
55 same power the principal would have had if he were not disabled or incompetent to revoke,
56 suspend, or terminate all or any part of the power of attorney or agency.
57 (3) If a power of attorney remains in effect or becomes effective as a result of a principal's
58 incapacity or disability, the attorney-in-fact or agent holding the power of attorney shall be bound

59 by the duties, liabilities, and standard of care in Title 75, Chapter 7, Part 3, Duties and Liabilities
60 of Trustees.
61 (4) In applying the duties, liabilities, and standard of care of Part 3, Duties and Liabilities
62 of Trustees, to this section:
63 (a) "beneficiary" means any person entitled to a part of the principal's estate from the
64 principal's will or through the intestacy laws, whichever is applicable; and
65 (b) "trust" means that part of the principal's estate which is covered or controlled by the
66 power of attorney.




Legislative Review Note
as of 1-30-01 9:31 AM

A limited legal review of this legislation raises no obvious constitutional or statutory concerns.

Office of Legislative Research and General Counsel