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7 LONG TITLE
8 General Description:
9 This bill enacts the Uniform Power of Attorney Act.
10 Highlighted Provisions:
11 This bill:
12 ▸ defines terms;
13 ▸ creates a framework to create a durable power of attorney;
14 ▸ sets requirements for execution and termination;
15 ▸ specifies the duties of an agent once the agent accepts appointment;
16 ▸ provides for judicial review;
17 ▸ describes the different types of grants of authority; and
18 ▸ suggests a standardized form for powers of attorney.
19 Money Appropriated in this Bill:
20 None
21 Other Special Clauses:
22 None
23 Utah Code Sections Affected:
24 AMENDS:
25 58-9-602, as last amended by Laws of Utah 2015, Chapter 313
26 ENACTS:
27 75-9-101, Utah Code Annotated 1953
28 75-9-102, Utah Code Annotated 1953
29 75-9-103, Utah Code Annotated 1953
30 75-9-104, Utah Code Annotated 1953
31 75-9-105, Utah Code Annotated 1953
32 75-9-106, Utah Code Annotated 1953
33 75-9-107, Utah Code Annotated 1953
34 75-9-108, Utah Code Annotated 1953
35 75-9-109, Utah Code Annotated 1953
36 75-9-110, Utah Code Annotated 1953
37 75-9-111, Utah Code Annotated 1953
38 75-9-112, Utah Code Annotated 1953
39 75-9-113, Utah Code Annotated 1953
40 75-9-114, Utah Code Annotated 1953
41 75-9-115, Utah Code Annotated 1953
42 75-9-116, Utah Code Annotated 1953
43 75-9-117, Utah Code Annotated 1953
44 75-9-118, Utah Code Annotated 1953
45 75-9-119, Utah Code Annotated 1953
46 75-9-120, Utah Code Annotated 1953
47 75-9-121, Utah Code Annotated 1953
48 75-9-122, Utah Code Annotated 1953
49 75-9-123, Utah Code Annotated 1953
50 75-9-201, Utah Code Annotated 1953
51 75-9-202, Utah Code Annotated 1953
52 75-9-203, Utah Code Annotated 1953
53 75-9-204, Utah Code Annotated 1953
54 75-9-205, Utah Code Annotated 1953
55 75-9-206, Utah Code Annotated 1953
56 75-9-207, Utah Code Annotated 1953
57 75-9-208, Utah Code Annotated 1953
58 75-9-209, Utah Code Annotated 1953
59 75-9-210, Utah Code Annotated 1953
60 75-9-211, Utah Code Annotated 1953
61 75-9-212, Utah Code Annotated 1953
62 75-9-213, Utah Code Annotated 1953
63 75-9-214, Utah Code Annotated 1953
64 75-9-215, Utah Code Annotated 1953
65 75-9-216, Utah Code Annotated 1953
66 75-9-217, Utah Code Annotated 1953
67 75-9-301, Utah Code Annotated 1953
68 75-9-302, Utah Code Annotated 1953
69 75-9-401, Utah Code Annotated 1953
70 75-9-402, Utah Code Annotated 1953
71 75-9-403, Utah Code Annotated 1953
72 REPEALS:
73 75-5-501, as last amended by Laws of Utah 2012, Chapter 274
74 75-5-502, as last amended by Laws of Utah 1994, Chapter 82
75 75-5-503, as enacted by Laws of Utah 2003, Chapter 241
76 75-5-504, as enacted by Laws of Utah 2003, Chapter 241
77
78 Be it enacted by the Legislature of the state of Utah:
79 Section 1. Section 58-9-602 is amended to read:
80 58-9-602. Determination of control of disposition.
81 The right and duty to control the disposition of a deceased person, which may include
82 cremation as well as the location, manner and conditions of the disposition, and arrangements
83 for funeral goods and services to be provided, vests in the following degrees of relationship in
84 the order named, provided the person is at least 18 and is mentally competent:
85 (1) the person designated:
86 (a) in a written instrument, excluding a power of attorney that terminates at death under
87 [
88 before a Notary Public or executed with the same formalities required of a will under Section
89 75-2-502; or
90 (b) by a service member while serving in a branch of the United States Armed Forces
91 as defined in 10 U.S.C. Sec. 1481 in a federal Record of Emergency Data, DD Form 93 or
92 subsequent form;
93 (2) the surviving, legally recognized spouse of the decedent, unless a personal
94 representative was nominated by the decedent subsequent to the marriage, in which case the
95 personal representative shall take priority over the spouse;
96 (3) the person nominated to serve as the personal representative of the decedent's estate
97 in a will executed with the formalities required in Section 75-2-502;
98 (4) (a) the sole surviving child of the decedent, or if there is more than one child of the
99 decedent, the majority of the surviving children;
100 (b) less than one-half of the surviving children are vested with the rights of this section
101 if they have used reasonable efforts to notify all other surviving children of their instructions
102 and are not aware of any opposition to those instructions on the part of more than one-half of
103 all surviving children;
104 (5) the surviving parent or parents of the decedent, however:
105 (a) if one of the surviving parents is absent, the remaining parent is vested with the
106 rights and duties of this section after reasonable efforts have been unsuccessful in locating the
107 absent surviving parent; or
108 (b) if the parents are divorced or separated and the decedent was an incapacitated adult,
109 the parent who was designated as the guardian of the decedent is vested with the rights and
110 duties of this section;
111 (6) (a) the surviving brother or sister of the decedent, or if there is more than one
112 sibling of the decedent, the majority of the surviving siblings;
113 (b) less than the majority of surviving siblings, if they have used reasonable efforts to
114 notify all other surviving siblings of their instructions and are not aware of any opposition to
115 those instructions on the part of more than one-half of all surviving siblings;
116 (7) the person in the classes of the next degree of kinship, in descending order, under
117 the laws of descent and distribution to inherit the estate of the decedent, and if there is more
118 than one person of the same degree, any person of that degree may exercise the right of
119 disposition;
120 (8) in the absence of any person under Subsections (1) through (7), the person who was
121 the decedent's guardian at the time of death;
122 (9) any public official charged with arranging the disposition of deceased persons; and
123 (10) in the absence of any person under Subsections (1) through (9), any other person
124 willing to assume the responsibilities to act and arrange the final disposition of the decedent's
125 remains, including the personal representative of the decedent's estate or the funeral service
126 director with custody of the body, after attesting in writing that a good faith effort has been
127 made to no avail to contact the individuals referred to in Subsections (1) through (9).
128 Section 2. Section 75-9-101 is enacted to read:
129
130
131 75-9-101. Title.
132 This chapter is known as the "Uniform Power of Attorney Act."
133 Section 3. Section 75-9-102 is enacted to read:
134 75-9-102. Definitions.
135 In this chapter:
136 (1) "Agent" means a person granted authority to act for a principal under a power of
137 attorney, whether denominated an agent, attorney-in-fact, or otherwise. The term includes an
138 original agent, coagent, successor agent, and person to which an agent's authority is delegated.
139 (2) "Durable," with respect to a power of attorney, means not terminated by the
140 principal's incapacity.
141 (3) "Electronic" means relating to technology having electrical, digital, magnetic,
142 wireless, optical, electromagnetic, or similar capabilities.
143 (4) "Good faith" means honesty in fact.
144 (5) "Incapacity" means the inability of an individual to manage property or business
145 affairs because the individual:
146 (a) has an impairment in the ability to receive and evaluate information or make or
147 communicate decisions even with the use of technological assistance; or
148 (b) is:
149 (i) missing;
150 (ii) detained, including incarcerated in a penal system; or
151 (iii) outside the United States and unable to return.
152 (6) "Person" means an individual, corporation, business trust, estate, trust, partnership,
153 limited liability company, association, joint venture, public corporation, government or
154 governmental subdivision, agency, or instrumentality, or any other legal or commercial entity.
155 (7) "Power of attorney" means a writing or other record that grants authority to an
156 agent to act in the place of the principal, whether or not the term power of attorney is used.
157 (8) "Presently exercisable general power of appointment," with respect to property or a
158 property interest subject to a power of appointment, means power exercisable at the time in
159 question to vest absolute ownership in the principal individually, the principal's estate, the
160 principal's creditors, or the creditors of the principal's estate. The term includes a power of
161 appointment not exercisable until the occurrence of a specified event, the satisfaction of an
162 ascertainable standard, or the passage of a specified period only after the occurrence of the
163 specified event, the satisfaction of the ascertainable standard, or the passage of the specified
164 period. The term does not include a power exercisable in a fiduciary capacity or only by will.
165 (9) "Principal" means an individual who grants authority to an agent in a power of
166 attorney.
167 (10) "Property" means anything that may be the subject of ownership, whether real or
168 personal, or legal or equitable, or any interest or right therein.
169 (11) "Record" means information that is inscribed on a tangible medium or that is
170 stored in an electronic or other medium and is retrievable in perceivable form.
171 (12) "Sign" means, with present intent to authenticate or adopt a record:
172 (a) to execute or adopt a tangible symbol; or
173 (b) to attach to or logically associate with the record an electronic sound, symbol, or
174 process.
175 (13) "State" means a state of the United States, the District of Columbia, Puerto Rico,
176 the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction
177 of the United States.
178 (14) "Stocks and bonds" means stocks, bonds, mutual funds, and all other types of
179 securities and financial instruments, whether held directly, indirectly, or in any other manner.
180 The term does not include commodity futures contracts and call or put options on stocks or
181 stock indexes.
182 Section 4. Section 75-9-103 is enacted to read:
183 75-9-103. Applicability.
184 This chapter applies to all powers of attorney except:
185 (1) a power to the extent it is coupled with an interest in the subject of the power,
186 including a power given to or for the benefit of a creditor in connection with a credit
187 transaction;
188 (2) a power to make health care decisions;
189 (3) a proxy or other delegation to exercise voting rights or management rights with
190 respect to an entity; and
191 (4) a power created on a form prescribed by a government or governmental
192 subdivision, agency, or instrumentality for a governmental purpose.
193 Section 5. Section 75-9-104 is enacted to read:
194 75-9-104. Power of attorney is durable.
195 A power of attorney created under this chapter is durable unless it expressly provides
196 that it is terminated by the incapacity of the principal.
197 Section 6. Section 75-9-105 is enacted to read:
198 75-9-105. Execution of power of attorney.
199 (1) A power of attorney shall be signed by the principal or in the principal's conscious
200 presence by another individual directed by the principal to sign the principal's name on the
201 power of attorney before a notary public or other individual authorized by the law to take
202 acknowledgments. A signature on a power of attorney is presumed to be genuine if the
203 principal acknowledges the signature before a notary public or other individual authorized by
204 law to take acknowledgments.
205 (2) If the principal resides or is about to reside in a hospital, assisted living, skilled
206 nursing, or similar facility, at the time of execution of the power of attorney, the principal may
207 not name any agent that is the owner, operator, health care provider, or employee of the
208 hospital, assisted living facility, skilled nursing, or similar residential care facility unless the
209 agent is the spouse, legal guardian, or next of kin of the principal, or unless the agent's
210 authority is strictly limited to the purpose of assisting the principal to establish eligibility for
211 Medicaid.
212 (3) A violation of Subsection (2) is a violation of Subsection 76-5-111(4)(a).
213 Section 7. Section 75-9-106 is enacted to read:
214 75-9-106. Validity of power of attorney.
215 (1) A power of attorney executed in this state on or after May 10, 2016, is valid if its
216 execution complies with Section 75-9-105.
217 (2) A power of attorney executed in this state before May 10, 2016, is valid if its
218 execution complied with the law of this state as it existed at the time of execution.
219 (3) A power of attorney executed other than in this state is valid in this state if, when
220 the power of attorney was executed, the execution complied with:
221 (a) the law of the jurisdiction that determines the meaning and effect of the power of
222 attorney pursuant to Section 75-9-107; or
223 (b) the requirements for a military power of attorney pursuant to 10 U.S.C. Sec. 1044b.
224 (4) Except as otherwise provided by statute other than this chapter, a photocopy or
225 electronically transmitted copy of an original power of attorney has the same effect as the
226 original. For transactions involving real property, the copy of the power of attorney may be
227 recorded in the county where the transaction lies when attached to an affidavit of the person
228 accepting the power of attorney.
229 Section 8. Section 75-9-107 is enacted to read:
230 75-9-107. Meaning and effect of power of attorney.
231 The meaning and effect of a power of attorney is determined by the law of the
232 jurisdiction indicated in the power of attorney and, in the absence of an indication of
233 jurisdiction, by the law of the jurisdiction in which the power of attorney was executed.
234 Section 9. Section 75-9-108 is enacted to read:
235 75-9-108. Nomination of conservator or guardian -- Relation of agent to court
236 appointed fiduciary.
237 (1) In a power of attorney, a principal may nominate a conservator of the principal's
238 estate or guardian of the principal's person for consideration by the court if protective
239 proceedings for the principal's estate or person are begun after the principal executes the power
240 of attorney. Except for good cause shown or disqualification, the court shall make its
241 appointment in accordance with the principal's most recent nomination.
242 (2) If, after a principal executes a power of attorney, a court appoints a conservator of
243 the principal's estate or other fiduciary charged with the management of some or all of the
244 principal's property, the agent is accountable to the fiduciary as well as to the principal. The
245 power of attorney is not terminated and the agent's authority continues unless limited,
246 suspended, or terminated by the court.
247 Section 10. Section 75-9-109 is enacted to read:
248 75-9-109. When power of attorney is effective.
249 (1) A power of attorney is effective when executed unless the principal provides in the
250 power of attorney that it becomes effective at a future date or upon the occurrence of a future
251 event or contingency.
252 (2) If a power of attorney becomes effective upon the occurrence of a future event or
253 contingency, the principal, in the power of attorney, may authorize one or more persons to
254 determine in a writing or other record that the event or contingency has occurred.
255 (3) If a power of attorney becomes effective upon the principal's incapacity and the
256 principal has not authorized a person to determine whether the principal is incapacitated, or the
257 person authorized is unable or unwilling to make the determination, the power of attorney
258 becomes effective upon a determination in a writing or other record by:
259 (a) a physician that the principal is incapacitated within the meaning of Subsection
260 75-9-102(5)(a); or
261 (b) an attorney at law, a judge, or an appropriate governmental official that the
262 principal is incapacitated within the meaning of Subsection 75-9-102(5)(b).
263 (4) A person authorized by the principal in the power of attorney to determine that the
264 principal is incapacitated may act as the principal's personal representative pursuant to the
265 Health Insurance Portability and Accountability Act, Sections 1171 through 1179 of the Social
266 Security Act, 42 U.S.C. Sec. 1320d, and applicable regulations, to obtain access to the
267 principal's health care information and communicate with the principal's health care provider.
268 Section 11. Section 75-9-110 is enacted to read:
269 75-9-110. Termination of power of attorney or agent's authority.
270 (1) A power of attorney terminates when:
271 (a) the principal dies;
272 (b) the principal becomes incapacitated, if the power of attorney is not durable;
273 (c) the principal revokes the power of attorney;
274 (d) the power of attorney provides that it terminates;
275 (e) the purpose of the power of attorney is accomplished; or
276 (f) the principal revokes the agent's authority or the agent dies, becomes incapacitated,
277 or resigns, and the power of attorney does not provide for another agent to act under the power
278 of attorney.
279 (2) An agent's authority terminates when:
280 (a) the principal revokes the authority;
281 (b) the agent dies, becomes incapacitated, or resigns;
282 (c) an action is filed for the dissolution or annulment of the agent's marriage to the
283 principal or their legal separation, unless the power of attorney otherwise provides; or
284 (d) the power of attorney terminates.
285 (3) Unless the power of attorney otherwise provides, an agent's authority is exercisable
286 until the authority terminates under Subsection (2), notwithstanding a lapse of time since the
287 execution of the power of attorney.
288 (4) Termination of an agent's authority or of a power of attorney is not effective as to
289 the agent or another person that, without actual knowledge of the termination, acts in good faith
290 under the power of attorney. An act so performed, unless otherwise invalid or unenforceable,
291 binds the principal and the principal's successors in interest.
292 (5) Incapacity of the principal of a power of attorney that is not durable does not revoke
293 or terminate the power of attorney as to an agent or other person that, without actual knowledge
294 of the incapacity, acts in good faith under the power of attorney. An act so performed, unless
295 otherwise invalid or unenforceable, binds the principal and the principal's successors in
296 interest.
297 (6) The execution of a power of attorney does not revoke a power of attorney
298 previously executed by the principal unless the subsequent power of attorney provides that the
299 previous power of attorney is revoked or that all other powers of attorney are revoked.
300 (7) The principal may revoke or amend a power of attorney:
301 (a) by substantial compliance with a method provided in the terms of the power of
302 attorney that expressly excludes all other methods for amending or revoking the power of
303 attorney; or
304 (b) if the terms of the power of attorney do not provide a method or the method
305 provided in the terms is not expressly made exclusive, by any other method manifesting clear
306 and convincing evidence of the principal's intent.
307 Section 12. Section 75-9-111 is enacted to read:
308 75-9-111. Coagents and successor agents.
309 (1) A principal may designate two or more persons to act as coagents. Unless the
310 power of attorney otherwise provides, each coagent may exercise its authority independently.
311 (2) A principal may designate one or more successor agents to act if an agent resigns,
312 dies, becomes incapacitated, is not qualified to serve, or declines to serve. A principal may
313 grant authority to designate one or more successor agents to an agent or other person
314 designated by name, office, or function. Unless the power of attorney otherwise provides, a
315 successor agent:
316 (a) has the same authority as that granted to the original agent; and
317 (b) may not act until all predecessor agents have resigned, died, become incapacitated,
318 are no longer qualified to serve, or have declined to serve.
319 (3) Except as otherwise provided in the power of attorney and Subsection (4), an agent
320 that does not participate in or conceal a breach of fiduciary duty committed by another agent,
321 including a predecessor agent, is not liable for the actions of the other agent.
322 (4) An agent that has accepted appointment and that has actual knowledge of a breach
323 or imminent breach of fiduciary duty by another agent shall notify the principal and, if the
324 principal is incapacitated, take any action reasonably appropriate in the circumstances to
325 safeguard the principal's best interest. An agent that fails to notify the principal or take action
326 as required by this subsection is liable for the reasonably foreseeable damages that could have
327 been avoided if the agent had notified the principal or taken action.
328 Section 13. Section 75-9-112 is enacted to read:
329 75-9-112. Reimbursement and compensation of agent.
330 Unless the power of attorney otherwise provides, an agent is entitled to reimbursement
331 of expenses reasonably incurred on behalf of the principal and to compensation that is
332 reasonable under the circumstances.
333 Section 14. Section 75-9-113 is enacted to read:
334 75-9-113. Agent's acceptance.
335 Except as otherwise provided in the power of attorney, a person accepts appointment as
336 an agent under a power of attorney by exercising authority or performing duties as an agent or
337 by any other assertion or conduct indicating acceptance.
338 Section 15. Section 75-9-114 is enacted to read:
339 75-9-114. Agent's duties.
340 (1) Notwithstanding provisions in the power of attorney, an agent that has accepted
341 appointment shall:
342 (a) act in accordance with the principal's reasonable expectations to the extent actually
343 known by the agent and, otherwise, in the principal's best interest;
344 (b) act in good faith;
345 (c) act only within the scope of authority granted in the power of attorney; and
346 (d) comply with the terms of the power of attorney.
347 (2) Except as otherwise provided in the power of attorney or other provision of this
348 chapter, an agent that has accepted appointment shall have no further obligation to act under
349 the power of attorney. However, with respect to any action taken by the agent under the power
350 of attorney, the agent shall:
351 (a) act loyally for the principal's benefit;
352 (b) act so as not to create a conflict of interest that impairs the agent's ability to act
353 impartially in the principal's best interest;
354 (c) act with the care, competence, and diligence ordinarily exercised by agents in
355 similar circumstances;
356 (d) keep a record of all receipts, disbursements, and transactions made on behalf of the
357 principal;
358 (e) cooperate with a person that has authority to make health care decisions for the
359 principal to carry out the principal's reasonable expectations to the extent actually known by the
360 agent and, otherwise, act in the principal's best interest; and
361 (f) attempt to preserve the principal's estate plan, to the extent actually known by the
362 agent, if preserving the plan is consistent with the principal's best interest based on all relevant
363 factors, including:
364 (i) the value and nature of the principal's property;
365 (ii) the principal's foreseeable obligations and need for maintenance;
366 (iii) minimization of taxes, including income, estate, inheritance, generation-skipping
367 transfer, and gift taxes; and
368 (iv) eligibility for a benefit, a program, or assistance under a statute, rule, or regulation.
369 (3) An agent that acts in good faith is not liable to any beneficiary of the principal's
370 estate plan for failure to preserve the plan.
371 (4) An agent that acts with care, competence, and diligence for the best interest of the
372 principal is not liable solely because the agent also benefits from the act or has an individual or
373 conflicting interest in relation to the property or affairs of the principal.
374 (5) If an agent is selected by the principal because of special skills or expertise
375 possessed by the agent or in reliance on the agent's representation that the agent has special
376 skills or expertise, the special skills or expertise shall be considered in determining whether the
377 agent has acted with care, competence, and diligence under the circumstances.
378 (6) Absent a breach of duty to the principal, an agent is not liable if the value of the
379 principal's property declines.
380 (7) An agent that exercises authority to delegate to another person the authority granted
381 by the principal or that engages another person on behalf of the principal is not liable for an act,
382 error of judgment, or default of that person if the agent exercises care, competence, and
383 diligence in selecting and monitoring the person.
384 (8) Except as otherwise provided in the power of attorney, an agent is not required to
385 disclose receipts, disbursements, or transactions conducted on behalf of the principal unless
386 ordered by a court or requested by the principal, a guardian, a conservator, another fiduciary
387 acting for the principal, a governmental agency having authority to protect the welfare of the
388 principal, an interested person as defined in Subsection 75-1-201(24) after the principal's
389 incapacity, or upon the death of the principal, by the personal representative or successor in
390 interest of the principal's estate. If so requested, within 30 days the agent shall comply with the
391 request or provide a writing or other record substantiating why additional time is needed and
392 shall comply with the request within an additional 30 days.
393 Section 16. Section 75-9-115 is enacted to read:
394 75-9-115. Exoneration of agent.
395 A provision in a power of attorney relieving an agent of liability for breach of duty is
396 binding on the principal and the principal's successors in interest except to the extent the
397 provision:
398 (1) relieves the agent of liability for breach of duty committed dishonestly, with an
399 improper motive, or with reckless indifference to the purposes of the power of attorney or the
400 best interest of the principal; or
401 (2) was inserted as a result of an abuse of a confidential or fiduciary relationship with
402 the principal.
403 Section 17. Section 75-9-116 is enacted to read:
404 75-9-116. Judicial relief.
405 (1) The following persons may petition a court to construe a power of attorney or
406 review the agent's conduct and grant appropriate relief:
407 (a) the principal or the agent;
408 (b) a guardian, conservator, or other fiduciary acting for the principal;
409 (c) a person authorized to make health care decisions for the principal;
410 (d) the principal's spouse, parent, or descendant;
411 (e) an individual who would qualify as a presumptive heir of the principal;
412 (f) a person named as a beneficiary to receive any property, benefit, or contractual right
413 on the principal's death or as a beneficiary of a trust created by or for the principal that has a
414 financial interest in the principal's estate;
415 (g) a governmental agency having regulatory authority to protect the welfare of the
416 principal;
417 (h) the principal's caregiver or another person that demonstrates sufficient interest in
418 the principal's welfare; and
419 (i) a person asked to accept the power of attorney.
420 (2) Upon motion by the principal, the court shall dismiss a petition filed under this
421 section, unless the court finds that the principal lacks capacity to revoke the agent's authority or
422 the power of attorney.
423 Section 18. Section 75-9-117 is enacted to read:
424 75-9-117. Agent's liability.
425 An agent that violates this chapter is liable to the principal or the principal's successors
426 in interest for the amount required to:
427 (1) restore the value of the principal's property to what it would have been had the
428 violation not occurred; and
429 (2) reimburse the principal or the principal's successors in interest for the attorney fees
430 and costs paid on the agent's behalf.
431 Section 19. Section 75-9-118 is enacted to read:
432 75-9-118. Agent's resignation -- Notice.
433 Unless the power of attorney provides a different method for an agent's resignation, an
434 agent may resign by giving notice to the principal and, if the principal is incapacitated:
435 (1) to the guardian, if one has been appointed for the principal, and a coagent or
436 successor agent; or
437 (2) if there is no person described in Subsection (1), to:
438 (a) the principal's caregiver;
439 (b) another person reasonably believed by the agent to have sufficient interest in the
440 principal's welfare; or
441 (c) a governmental agency having authority to protect the welfare of the principal.
442 Section 20. Section 75-9-119 is enacted to read:
443 75-9-119. Acceptance of and reliance upon acknowledged power of attorney.
444 (1) For purposes of this section and Section 75-9-120, "acknowledged" means
445 purportedly verified before a notary public or other individual authorized to take
446 acknowledgements.
447 (2) A person that in good faith accepts an acknowledged power of attorney without
448 actual knowledge that the signature is not genuine may rely upon the presumption under
449 Section 75-9-105 that the signature is genuine.
450 (3) A person that in good faith accepts an acknowledged power of attorney without
451 actual knowledge that the power of attorney is void, invalid, or terminated, that the purported
452 agent's authority is void, invalid, or terminated, or that the agent is exceeding or improperly
453 exercising the agent's authority may rely upon the power of attorney as if the power of attorney
454 were genuine, valid, and still in effect, the agent's authority were genuine, valid, and still in
455 effect, and the agent had not exceeded and had properly exercised the authority.
456 (4) A person that is asked to accept an acknowledged power of attorney may request,
457 and rely upon, without further investigation:
458 (a) an agent's certification under penalty of perjury of any factual matter concerning the
459 principal, agent, or power of attorney;
460 (b) an English translation of the power of attorney if the power of attorney contains, in
461 whole or in part, language other than English; and
462 (c) an opinion of counsel as to any matter of law concerning the power of attorney if
463 the person making the request provides in a writing or other record the reason for the request.
464 (5) An English translation or an opinion of counsel requested under this section shall
465 be provided at the principal's expense unless the request is made more than seven business days
466 after the power of attorney is presented for acceptance.
467 (6) For purposes of this section and Section 75-9-120, a person that conducts activities
468 through employees is without actual knowledge of a fact relating to a power of attorney, a
469 principal, or an agent if the employee conducting the transaction involving the power of
470 attorney is without actual knowledge of the fact.
471 Section 21. Section 75-9-120 is enacted to read:
472 75-9-120. Liability for Refusal to Accept Acknowledged Power of Attorney.
473 (1) Except as otherwise provided in Subsection (2):
474 (a) a person shall either accept an acknowledged power of attorney or request a
475 certification, a translation, or an opinion of counsel under Subsection 75-9-119(4) no later than
476 seven business days after presentation of the power of attorney for acceptance;
477 (b) if a person requests a certification, a translation, or an opinion of counsel under
478 Subsection 75-9-119(4), the person shall accept the power of attorney no later than five
479 business days after receipt of the certification, translation, or opinion of counsel; and
480 (c) a person may not require an additional or different form of power of attorney for
481 authority granted in the power of attorney presented.
482 (2) A person is not required to accept an acknowledged power of attorney if:
483 (a) the person is not otherwise required to engage in a transaction with the principal in
484 the same circumstances;
485 (b) engaging in a transaction with the agent or the principal in the same circumstances
486 would be inconsistent with federal law;
487 (c) the person has actual knowledge of the termination of the agent's authority or of the
488 power of attorney before exercise of the power;
489 (d) a request for a certification, a translation, or an opinion of counsel under Subsection
490 75-9-119(4) is refused;
491 (e) the person in good faith believes that the power is not valid or that the agent does
492 not have the authority to perform the act requested, whether or not a certification, a translation,
493 or an opinion of counsel under Subsection 75-9-119(4) has been requested or provided; or
494 (f) the person makes, or has actual knowledge that another person has made, a report to
495 the Division of Aging and Adult Services stating a good faith belief that the principal may be
496 subject to physical or financial abuse, neglect, exploitation, or abandonment by the agent or a
497 person acting for or with the agent.
498 (3) A person that refuses in violation of this section to accept an acknowledged power
499 of attorney is subject to:
500 (a) a court order mandating acceptance of the power of attorney; and
501 (b) liability for reasonable attorney's fees and costs incurred in any action or proceeding
502 that confirms the validity of the power of attorney or mandates acceptance of the power of
503 attorney.
504 (4) Court proceedings under this section shall be conducted pursuant to the terms in the
505 Uniform Probate Code governing venue and procedures.
506 Section 22. Section 75-9-121 is enacted to read:
507 75-9-121. Principles of law and equity.
508 Unless displaced by a provision of this chapter, the principles of law and equity
509 supplement this act.
510 Section 23. Section 75-9-122 is enacted to read:
511 75-9-122. Laws applicable to financial institutions and entities.
512 This chapter does not supersede any other law applicable to financial institutions or
513 other entities, and the other law controls if inconsistent with this chapter.
514 Section 24. Section 75-9-123 is enacted to read:
515 75-9-123. Remedies under other law.
516 The remedies under this chapter are not exclusive and do not abrogate any right or
517 remedy under the law of this state other than this chapter.
518 Section 25. Section 75-9-201 is enacted to read:
519
520 75-9-201. Authority that requires specific grant -- Grant of general authority.
521 (1) An agent under a power of attorney may do the following on behalf of the principal
522 or with the principal's property only if the power of attorney expressly grants the agent the
523 authority, and exercise of the authority is not otherwise prohibited by another agreement or
524 instrument to which the authority or property is subject:
525 (a) create, amend, revoke, or terminate an inter vivos trust;
526 (b) make a gift;
527 (c) create or change rights of survivorship;
528 (d) create or change a beneficiary designation;
529 (e) delegate authority granted under the power of attorney;
530 (f) waive the principal's right to be a beneficiary of a joint and survivor annuity,
531 including a survivor benefit under a retirement plan;
532 (g) exercise fiduciary powers that the principal has authority to delegate; or
533 (h) disclaim property or otherwise exercise a power of appointment.
534 (2) Notwithstanding a grant of authority to do an act described in Subsection (1),
535 unless the power of attorney otherwise provides, an agent that is not an ancestor, spouse, or
536 descendant of the principal may not exercise authority under a power of attorney to create in
537 the agent, or in an individual to whom the agent owes a legal obligation of support, an interest
538 in the principal's property, whether by gift, right of survivorship, beneficiary designation,
539 disclaimer, or otherwise.
540 (3) Subject to Subsections (1), (2), (4), and (5), if a power of attorney grants to an agent
541 authority to do all acts that a principal could do, the agent has the general authority described in
542 Sections 75-9-204 through 75-9-216.
543 (4) Unless the power of attorney otherwise provides, a grant of authority to make a gift
544 is subject to Section 75-9-217.
545 (5) Subject to Subsections (1), (2), and (4), if the subjects over which authority is
546 granted in a power of attorney are similar or overlap, the broadest authority controls.
547 (6) Authority granted in a power of attorney is exercisable with respect to property that
548 the principal has when the power of attorney is executed or acquires later, whether or not the
549 property is located in this state and whether or not the authority is exercised or the power of
550 attorney is executed in this state.
551 (7) An act performed by an agent pursuant to a power of attorney has the same effect,
552 inures to the benefit of, and binds the principal and the principal's successors in interest as if
553 the principal had performed the act.
554 Section 26. Section 75-9-202 is enacted to read:
555 75-9-202. Incorporation of authority.
556 (1) An agent has authority described in this part if the power of attorney refers to
557 general authority with respect to the descriptive term for the subjects stated in Sections
558 75-9-204 through 75-9-217 or cites the section in which the authority is described.
559 (2) A reference in a power of attorney to general authority with respect to the
560 descriptive term for a subject in Sections 75-9-204 through 75-9-217 or a citation to a section
561 of Sections 75-9-204 through 75-9-217 incorporates the entire section as if it were set out in
562 full in the power of attorney.
563 (3) A principal may modify authority incorporated by reference.
564 Section 27. Section 75-9-203 is enacted to read:
565 75-9-203. Construction of authority generally.
566 Except as otherwise provided in the power of attorney, by executing a power of attorney
567 that incorporates by reference a subject described in Sections 75-9-204 through 75-9-217 or
568 that grants to an agent authority to do all acts that a principal could do pursuant to Subsection
569 75-9-201(3), a principal authorizes the agent, with respect to that subject, to:
570 (1) demand, receive, and obtain, by litigation or otherwise, money or another thing of
571 value to which the principal is, may become, or claims to be entitled, and conserve, invest,
572 disburse, or use anything so received or obtained for the purposes intended;
573 (2) contract in any manner with any person, on terms agreeable to the agent, to
574 accomplish a purpose of a transaction and perform, rescind, cancel, terminate, reform, restate,
575 release, or modify the contract or another contract made by or on behalf of the principal;
576 (3) execute, acknowledge, seal, deliver, file, or record any instrument or
577 communication the agent considers desirable to accomplish a purpose of a transaction,
578 including creating at any time a schedule listing some or all of the principal's property and
579 attaching it to the power of attorney;
580 (4) initiate, participate in, submit to alternative dispute resolution, settle, oppose, or
581 propose or accept a compromise with respect to a claim existing in favor of or against the
582 principal or intervene in litigation relating to the claim;
583 (5) seek on the principal's behalf the assistance of a court or other governmental agency
584 to carry out an act authorized in the power of attorney;
585 (6) engage, compensate, and discharge an attorney, accountant, discretionary
586 investment manager, expert witness, or other advisor;
587 (7) prepare, execute, and file a record, report, or other document to safeguard or
588 promote the principal's interest under a statute or regulation;
589 (8) communicate with any representative or employee of a government or
590 governmental subdivision, agency, or instrumentality on behalf of the principal;
591 (9) access communications intended for, and communicate on behalf of the principal,
592 whether by mail, electronic transmission, telephone, or other means; and
593 (10) do any lawful act with respect to the subject and all property related to the subject.
594 Section 28. Section 75-9-204 is enacted to read:
595 75-9-204. Real property.
596 Unless the power of attorney otherwise provides, language in a power of attorney
597 granting general authority with respect to real property authorizes the agent to:
598 (1) demand, buy, lease, receive, accept as a gift or as security for an extension of credit,
599 or otherwise acquire or reject an interest in real property or a right incident to real property;
600 (2) (a) sell;
601 (b) exchange;
602 (c) convey with or without covenants, representations, or warranties;
603 (d) quitclaim;
604 (e) release;
605 (f) surrender;
606 (g) retain title for security;
607 (h) encumber;
608 (i) partition;
609 (j) consent to partitioning;
610 (k) subject to an easement or covenant;
611 (l) subdivide;
612 (m) apply for zoning or other governmental permits;
613 (n) plat or consent to platting;
614 (o) develop;
615 (p) grant an option concerning;
616 (q) lease;
617 (r) sublease;
618 (s) contribute to an entity in exchange for an interest in that entity; or
619 (t) otherwise grant or dispose of an interest in real property or a right incident to real
620 property;
621 (3) pledge or mortgage an interest in real property or right incident to real property as
622 security to borrow money or pay, renew, or extend the time of payment of a debt of the
623 principal or a debt guaranteed by the principal;
624 (4) release, assign, satisfy, or enforce by litigation or otherwise a mortgage, deed of
625 trust, conditional sale contract, encumbrance, lien, or other claim to real property that exists or
626 is asserted;
627 (5) manage or conserve an interest in real property or a right incident to real property
628 owned or claimed to be owned by the principal, including:
629 (a) insuring against liability or casualty or other loss;
630 (b) obtaining or regaining possession of or protecting the interest or right by litigation
631 or otherwise;
632 (c) paying, assessing, compromising, or contesting taxes or assessments or applying for
633 and receiving refunds in connection with taxes or assessments; and
634 (d) purchasing supplies, hiring assistance or labor, and making repairs or alterations to
635 the real property;
636 (6) use, develop, alter, replace, remove, erect, or install structures or other
637 improvements upon real property in or incident to which the principal has, or claims to have,
638 an interest or right;
639 (7) participate in a reorganization with respect to real property or an entity that owns an
640 interest in or right incident to real property and receive, hold, and act with respect to stocks and
641 bonds or other property received in a plan of reorganization, including:
642 (a) selling or otherwise disposing of stocks and bonds;
643 (b) exercising or selling an option, right of conversion, or similar right with respect to
644 stocks and bonds; and
645 (c) exercising any voting rights in person or by proxy;
646 (8) change the form of title of an interest in or right incident to real property; and
647 (9) dedicate to public use, with or without consideration, easements or other real
648 property in which the principal has, or claims to have, an interest.
649 Section 29. Section 75-9-205 is enacted to read:
650 75-9-205. Tangible personal property.
651 Unless the power of attorney otherwise provides, language in a power of attorney
652 granting general authority with respect to tangible personal property authorizes the agent to:
653 (1) demand, buy, receive, accept as a gift or as security for an extension of credit, or
654 otherwise acquire or reject ownership or possession of tangible personal property or an interest
655 in tangible personal property;
656 (2) sell; exchange; convey with or without covenants, representations, or warranties;
657 quitclaim; release; surrender; create a security interest in; grant options concerning; lease;
658 sublease; or otherwise dispose of tangible personal property or an interest in tangible personal
659 property;
660 (3) grant a security interest in tangible personal property or an interest in tangible
661 personal property as security to borrow money or pay, renew, or extend the time of payment of
662 a debt of the principal or a debt guaranteed by the principal;
663 (4) release, assign, satisfy, or enforce by litigation or otherwise, a security interest, lien,
664 or other claim on behalf of the principal, with respect to tangible personal property or an
665 interest in tangible personal property;
666 (5) manage or conserve tangible personal property or an interest in tangible personal
667 property on behalf of the principal, including:
668 (a) insuring against liability, casualty, or other loss;
669 (b) obtaining or regaining possession of or protecting the property or interest, by
670 litigation or otherwise;
671 (c) paying, assessing, compromising, or contesting taxes or assessments or applying for
672 and receiving refunds in connection with taxes or assessments;
673 (d) moving the property from place to place;
674 (e) storing the property for hire or on a gratuitous bailment; and
675 (f) using and making repairs, alterations, or improvements to the property; and
676 (6) change the form of title of an interest in tangible personal property.
677 Section 30. Section 75-9-206 is enacted to read:
678 75-9-206. Stocks and bonds.
679 Unless the power of attorney otherwise provides, language in a power of attorney
680 granting general authority with respect to stocks and bonds authorizes the agent to:
681 (1) buy, sell, and exchange stocks and bonds;
682 (2) establish, continue, modify, or terminate an account with respect to stocks and
683 bonds;
684 (3) pledge stocks and bonds as security to borrow, pay, renew, or extend the time of
685 payment of a debt of the principal;
686 (4) receive certificates and other evidences of ownership with respect to stocks and
687 bonds; and
688 (5) exercise voting rights with respect to stocks and bonds in person or by proxy, enter
689 into voting trusts, and consent to limitations on the right to vote.
690 Section 31. Section 75-9-207 is enacted to read:
691 75-9-207. Commodities and options.
692 Unless the power of attorney otherwise provides, language in a power of attorney
693 granting general authority with respect to commodities and options authorizes the agent to:
694 (1) buy, sell, exchange, assign, settle, and exercise commodity futures contracts and
695 call or put options on stocks or stock indexes traded on a regulated option exchange; and
696 (2) establish, continue, modify, and terminate option accounts.
697 Section 32. Section 75-9-208 is enacted to read:
698 75-9-208. Banks and other financial institutions.
699 Unless the power of attorney otherwise provides, language in a power of attorney
700 granting general authority with respect to banks and other financial institutions authorizes the
701 agent to:
702 (1) continue, modify, and terminate an account or other banking arrangement made by
703 or on behalf of the principal;
704 (2) establish, modify, and terminate an account or other banking arrangement with a
705 bank, trust company, savings and loan association, credit union, thrift company, brokerage
706 firm, or other financial institution selected by the agent;
707 (3) contract for services available from a financial institution, including renting or
708 closing a safe deposit box or space in a vault;
709 (4) withdraw, by check, order, electronic funds transfer, or otherwise, money or
710 property of the principal deposited with or left in the custody of a financial institution;
711 (5) receive statements of account, vouchers, notices, and similar documents from a
712 financial institution and act with respect to them;
713 (6) enter a safe deposit box or vault and withdraw or add to the contents;
714 (7) borrow money and pledge as security personal property of the principal necessary
715 to borrow money or pay, renew, or extend the time of payment of a debt of the principal or a
716 debt guaranteed by the principal;
717 (8) make, assign, draw, endorse, discount, guarantee, and negotiate promissory notes,
718 checks, drafts, and other negotiable or nonnegotiable paper of the principal or payable to the
719 principal or the principal's order, transfer money, receive the cash or other proceeds of those
720 transactions, and accept a draft drawn by a person upon the principal and pay it when due;
721 (9) receive for the principal and act upon a sight draft, warehouse receipt, or other
722 document of title whether tangible or electronic, or other negotiable or nonnegotiable
723 instrument;
724 (10) apply for, receive, and use letters of credit, credit and debit cards, electronic
725 transaction authorizations, and traveler's checks from a financial institution and give an
726 indemnity or other agreement in connection with letters of credit; and
727 (11) consent to an extension of the time of payment with respect to commercial paper
728 or a financial transaction with a financial institution.
729 Section 33. Section 75-9-209 is enacted to read:
730 75-9-209. Operation of entity or business.
731 Subject to the terms of a document or an agreement governing an entity or an entity
732 ownership interest, and unless the power of attorney otherwise provides, language in a power
733 of attorney granting general authority with respect to operation of an entity or business
734 authorizes the agent to:
735 (1) operate, buy, sell, enlarge, reduce, or terminate an ownership interest;
736 (2) perform a duty or discharge a liability and exercise in person or by proxy a right,
737 power, privilege, or option that the principal has, may have, or claims to have;
738 (3) enforce the terms of an ownership agreement;
739 (4) initiate, participate in, submit to alternative dispute resolution, settle, oppose, or
740 propose or accept a compromise with respect to litigation to which the principal is a party
741 because of an ownership interest;
742 (5) exercise in person or by proxy, or enforce by litigation or otherwise, a right, power,
743 privilege, or option the principal has or claims to have as the holder of stocks and bonds;
744 (6) initiate, participate in, submit to alternative dispute resolution, settle, oppose, or
745 propose or accept a compromise with respect to litigation to which the principal is a party
746 concerning stocks and bonds;
747 (7) with respect to an entity or business owned solely by the principal:
748 (a) continue, modify, renegotiate, extend, and terminate a contract made by or on
749 behalf of the principal with respect to the entity or business before execution of the power of
750 attorney;
751 (b) determine:
752 (i) the location of its operation;
753 (ii) the nature and extent of its business;
754 (iii) the methods of manufacturing, selling, merchandising, financing, accounting, and
755 advertising employed in its operation;
756 (iv) the amount and types of insurance carried; and
757 (v) the mode of engaging, compensating, and dealing with its employees and
758 accountants, attorneys, or other advisors;
759 (c) change the name or form of organization under which the entity or business is
760 operated and enter into an ownership agreement with other persons to take over all or part of
761 the operation of the entity or business; and
762 (d) demand and receive money due or claimed by the principal or on the principal's
763 behalf in the operation of the entity or business and control and disburse the money in the
764 operation of the entity or business;
765 (8) put additional capital into an entity or business in which the principal has an
766 interest;
767 (9) join in a plan of reorganization, consolidation, conversion, domestication, or
768 merger of the entity or business;
769 (10) sell or liquidate all or part of an entity or business;
770 (11) establish the value of an entity or business under a buy-out agreement to which the
771 principal is a party;
772 (12) prepare, sign, file, and deliver reports, compilations of information, returns, or
773 other papers with respect to an entity or business and make related payments; and
774 (13) pay, compromise, or contest taxes, assessments, fines, or penalties and perform
775 any other act to protect the principal from illegal or unnecessary taxation, assessments, fines, or
776 penalties, with respect to an entity or business, including attempts to recover, in any manner
777 permitted by law, money paid before or after the execution of the power of attorney.
778 Section 34. Section 75-9-210 is enacted to read:
779 75-9-210. Insurance and annuities.
780 Unless the power of attorney otherwise provides, language in a power of attorney
781 granting general authority with respect to insurance and annuities authorizes the agent to:
782 (1) continue, pay the premium or make a contribution on, modify, exchange, rescind,
783 release, or terminate a contract procured by or on behalf of the principal that insures or
784 provides an annuity to either the principal or another person, whether or not the principal is a
785 beneficiary under the contract;
786 (2) procure new, different, and additional contracts of insurance and annuities for the
787 principal and the principal's spouse, children, and other dependents, and select the amount, type
788 of insurance or annuity, and mode of payment;
789 (3) pay the premium or make a contribution on, modify, exchange, rescind, release, or
790 terminate a contract of insurance or annuity procured by the agent;
791 (4) apply for and receive a loan secured by a contract of insurance or annuity;
792 (5) surrender and receive the cash surrender value on a contract of insurance or
793 annuity;
794 (6) exercise an election;
795 (7) exercise investment powers available under a contract of insurance or annuity;
796 (8) change the manner of paying premiums on a contract of insurance or annuity;
797 (9) change or convert the type of insurance or annuity with respect to which the
798 principal has or claims to have authority described in this section;
799 (10) apply for and procure a benefit or assistance under a statute or regulation to
800 guarantee or pay premiums of a contract of insurance on the life of the principal;
801 (11) collect, sell, assign, hypothecate, borrow against, or pledge the interest of the
802 principal in a contract of insurance or annuity;
803 (12) select the form and timing of the payment of proceeds from a contract of insurance
804 or annuity; and
805 (13) pay, from proceeds or otherwise, compromise or contest, and apply for refunds in
806 connection with a tax or assessment levied by a taxing authority with respect to a contract of
807 insurance or annuity or its proceeds or liability accruing by reason of the tax or assessment.
808 Section 35. Section 75-9-211 is enacted to read:
809 75-9-211. Estates, trusts, and other beneficial interests.
810 (1) In this section, "estate, trust, or other beneficial interest" means a trust, probate
811 estate, guardianship, conservatorship, escrow, custodianship, or fund from which the principal
812 is, may become, or claims to be entitled to a share or payment.
813 (2) Unless the power of attorney otherwise provides, language in a power of attorney
814 granting general authority with respect to estates, trusts, and other beneficial interests
815 authorizes the agent to:
816 (a) accept, receive, receipt for, sell, assign, pledge, or exchange a share in or payment
817 from an estate, trust, or other beneficial interest;
818 (b) demand or obtain money or another thing of value to which the principal is, may
819 become, or claims to be entitled by reason of an estate, trust, or other beneficial interest, by
820 litigation or otherwise;
821 (c) exercise for the benefit of the principal a presently exercisable general power of
822 appointment held by the principal;
823 (d) initiate, participate in, submit to alternative dispute resolution, settle, oppose, or
824 propose or accept a compromise with respect to litigation to ascertain the meaning, validity, or
825 effect of a deed, will, declaration of trust, or other instrument or transaction affecting the
826 interest of the principal;
827 (e) initiate, participate in, submit to alternative dispute resolution, settle, oppose, or
828 propose or accept a compromise with respect to litigation to remove, substitute, or surcharge a
829 fiduciary;
830 (f) conserve, invest, disburse, or use anything received for an authorized purpose;
831 (g) transfer an interest of the principal in real property, stocks and bonds, accounts with
832 financial institutions or securities intermediaries, insurance, annuities, and other property to the
833 trustee of a revocable trust created by the principal as settlor; and
834 (h) reject, renounce, disclaim, release, or consent to a reduction in or modification of a
835 share in or payment from an estate, trust, or other beneficial interest.
836 Section 36. Section 75-9-212 is enacted to read:
837 75-9-212. Claims and litigation.
838 Unless the power of attorney otherwise provides, language in a power of attorney
839 granting general authority with respect to claims and litigation authorizes the agent to:
840 (1) assert and maintain before a court or administrative agency a claim, claim for relief,
841 cause of action, counterclaim, offset, recoupment, or defense, including an action to recover
842 property or other thing of value, recover damages sustained by the principal, eliminate or
843 modify tax liability, or seek an injunction, specific performance, or other relief;
844 (2) bring an action to determine adverse claims or intervene or otherwise participate in
845 litigation;
846 (3) seek an attachment, garnishment, order of arrest, or other preliminary, provisional,
847 or intermediate relief and use an available procedure to effect or satisfy a judgment, order, or
848 decree;
849 (4) make or accept a tender, offer of judgment, or admission of facts, submit a
850 controversy on an agreed statement of facts, consent to examination, and bind the principal in
851 litigation;
852 (5) submit to alternative dispute resolution, settle, and propose or accept a
853 compromise;
854 (6) waive the issuance and service of process upon the principal, accept service of
855 process, appear for the principal, designate persons upon which process directed to the
856 principal may be served, execute and file or deliver stipulations on the principal's behalf, verify
857 pleadings, seek appellate review, procure and give surety and indemnity bonds, contract and
858 pay for the preparation and printing of records and briefs, receive, execute, and file or deliver a
859 consent, waiver, release, confession of judgment, satisfaction of judgment, notice, agreement,
860 or other instrument in connection with the prosecution, settlement, or defense of a claim or
861 litigation;
862 (7) act for the principal with respect to bankruptcy or insolvency, whether voluntary or
863 involuntary, concerning the principal or some other person, or with respect to a reorganization,
864 receivership, or application for the appointment of a receiver or trustee that affects an interest
865 of the principal in property or other thing of value;
866 (8) pay a judgment, award, or order against the principal or a settlement made in
867 connection with a claim or litigation; and
868 (9) receive money or other thing of value paid in settlement of or as proceeds of a
869 claim or litigation.
870 Section 37. Section 75-9-213 is enacted to read:
871 75-9-213. Personal and family maintenance.
872 (1) Unless the power of attorney otherwise provides, language in a power of attorney
873 granting general authority with respect to personal and family maintenance authorizes the agent
874 to:
875 (a) perform the acts necessary to maintain the customary standard of living of the
876 principal, the principal's spouse, and the following individuals, whether living when the power
877 of attorney is executed or later born:
878 (i) the principal's children;
879 (ii) other individuals legally entitled to be supported by the principal; and
880 (iii) the individuals whom the principal has customarily supported or indicated the
881 intent to support;
882 (b) make periodic payments of child support and other family maintenance required by
883 a court or governmental agency or an agreement to which the principal is a party;
884 (c) provide living quarters for the individuals described in Subsection (1)(a) by:
885 (i) purchase, lease, or other contract; or
886 (ii) paying the operating costs, including interest, amortization payments, repairs,
887 improvements, and taxes, for premises owned by the principal or occupied by those
888 individuals;
889 (d) provide normal domestic help, usual vacations and travel expenses, and funds for
890 shelter, clothing, food, appropriate education, including postsecondary and vocational
891 education, and other current living costs for the individuals described in Subsection (1)(a);
892 (e) pay expenses for necessary health care and custodial care on behalf of the
893 individuals described in Subsection (1)(a);
894 (f) act as the principal's personal representative pursuant to the Health Insurance
895 Portability and Accountability Act, Sections 1171 through 1179 of the Social Security Act, 42
896 U.S.C. Sec. 1320d, and applicable regulations, in making decisions related to the past, present,
897 or future payment for the provision of health care consented to by the principal or anyone
898 authorized under the law of this state to consent to health care on behalf of the principal;
899 (g) continue any provision made by the principal for automobiles or other means of
900 transportation, including registering, licensing, insuring, and replacing them, for the individuals
901 described in Subsection (1)(a);
902 (h) maintain credit and debit accounts and open new accounts for the convenience of
903 the individuals described in Subsection (1)(a); and
904 (i) continue payments incidental to the membership or affiliation of the principal in a
905 religious institution, club, society, order, or other organization or to continue contributions to
906 those organizations.
907 (2) Authority with respect to personal and family maintenance is neither dependent
908 upon, nor limited by, authority that an agent may or may not have with respect to gifts under
909 this chapter.
910 Section 38. Section 75-9-214 is enacted to read:
911 75-9-214. Benefits from governmental programs or civil or military service.
912 (1) In this section, "benefits from governmental programs or civil or military service"
913 means any benefit, program, or assistance provided under a statute or regulation, including
914 social security, Medicare, and Medicaid.
915 (2) Unless the power of attorney otherwise provides, language in a power of attorney
916 granting general authority with respect to benefits from governmental programs or civil or
917 military service authorizes the agent to:
918 (a) execute vouchers in the name of the principal for allowances and reimbursements
919 payable by the United States or a foreign government or by a state or subdivision of a state to
920 the principal, including allowances and reimbursements for transportation of the individuals
921 described in Subsection 75-9-213(1)(a), and for shipment of their household effects;
922 (b) take possession and order the removal and shipment of property of the principal
923 from a post, warehouse, depot, dock, or other place of storage or safekeeping, either
924 governmental or private, and execute and deliver a release, voucher, receipt, bill of lading,
925 shipping ticket, certificate, or other instrument for that purpose;
926 (c) enroll in, apply for, select, reject, change, amend, or discontinue, on the principal's
927 behalf, a benefit or program;
928 (d) prepare, file, and maintain a claim of the principal for a benefit or assistance,
929 financial or otherwise, to which the principal may be entitled under a statute or regulation;
930 (e) initiate, participate in, submit to alternative dispute resolution, settle, oppose, or
931 propose or accept a compromise with respect to litigation concerning any benefit or assistance
932 the principal may be entitled to receive under a statute or regulation; and
933 (f) receive the financial proceeds of a claim described in Subsection (2)(d) and
934 conserve, invest, disburse, or use for a lawful purpose anything received.
935 Section 39. Section 75-9-215 is enacted to read:
936 75-9-215. Retirement plans.
937 (1) In this section, "retirement plan" means a plan or account created by an employer,
938 the principal, or another individual to provide retirement benefits or deferred compensation of
939 which the principal is a participant, beneficiary, or owner, including a plan or account under the
940 following sections of the Internal Revenue Code:
941 (a) an individual retirement account under Section 408, Internal Revenue Code;
942 (b) a Roth individual retirement account under Section 408A, Internal Revenue Code;
943 (c) a deemed individual retirement account under Section 408(q), Internal Revenue
944 Code;
945 (d) an annuity or mutual fund custodial account under Section 403(b), Internal Revenue
946 Code;
947 (e) a pension, profit-sharing, stock bonus, or other retirement plan qualified under
948 Section 401(a), Internal Revenue Code;
949 (f) a plan under Section 457(b), Internal Revenue Code; and
950 (g) a nonqualified deferred compensation plan under Section 409A, Internal Revenue
951 Code.
952 (2) Unless the power of attorney otherwise provides, language in a power of attorney
953 granting general authority with respect to retirement plans authorizes the agent to:
954 (a) select the form and timing of payments under a retirement plan and withdraw
955 benefits from a plan;
956 (b) make a rollover, including a direct trustee-to-trustee rollover, of benefits from one
957 retirement plan to another;
958 (c) establish a retirement plan in the principal's name;
959 (d) make contributions to a retirement plan;
960 (e) exercise investment powers available under a retirement plan; and
961 (f) borrow from, sell assets to, or purchase assets from a retirement plan.
962 Section 40. Section 75-9-216 is enacted to read:
963 75-9-216. Taxes.
964 Unless the power of attorney otherwise provides, language in a power of attorney
965 granting general authority with respect to taxes authorizes the agent to:
966 (1) prepare, sign, and file federal, state, local, and foreign income, gift, payroll,
967 property, Federal Insurance Contributions Act, and other tax returns, claims for refunds,
968 requests for extension of time, petitions regarding tax matters, and any other tax-related
969 documents, including receipts, offers, waivers, consents, including consents and agreements
970 under Section 2032A, Internal Revenue Code, closing agreements, and any power of attorney
971 required by the Internal Revenue Service or other taxing authority with respect to a tax year
972 upon which the statute of limitations has not run and the following 25 tax years;
973 (2) pay taxes due, collect refunds, post bonds, receive confidential information, and
974 contest deficiencies determined by the Internal Revenue Service or other taxing authority;
975 (3) exercise any election available to the principal under federal, state, local, or foreign
976 tax law; and
977 (4) act for the principal in all tax matters for all periods before the Internal Revenue
978 Service or other taxing authority.
979 Section 41. Section 75-9-217 is enacted to read:
980 75-9-217. Gifts.
981 (1) In this section, a gift "for the benefit of" a person includes a gift to a trust, an
982 account under the Uniform Transfers to Minors Act (1983/1986), and a tuition savings account
983 or prepaid tuition plan as defined under Section 529, Internal Revenue Code.
984 (2) Unless the power of attorney otherwise provides, language in a power of attorney
985 granting general authority with respect to gifts authorizes the agent only to:
986 (a) make outright to, or for the benefit of, a person a gift of any of the principal's
987 property, including by the exercise of a presently exercisable general power of appointment
988 held by the principal, in an amount per donee not to exceed the annual dollar limits of the
989 federal gift tax exclusion under Section 2503(b), Internal Revenue Code, without regard to
990 whether the federal gift tax exclusion applies to the gift, or if the principal's spouse agrees to
991 consent to a split gift pursuant to Section 2513, Internal Revenue Code, in an amount per donee
992 not to exceed twice the annual federal gift tax exclusion limit; and
993 (b) consent, pursuant to Section 2513, Internal Revenue Code, to the splitting of a gift
994 made by the principal's spouse in an amount per donee not to exceed the aggregate annual gift
995 tax exclusions for both spouses.
996 (3) An agent may make a gift of the principal's property only as the agent determines is
997 consistent with the principal's objectives if actually known by the agent and, if unknown, as the
998 agent determines is consistent with the principal's best interest based on all relevant factors,
999 including:
1000 (a) the value and nature of the principal's property;
1001 (b) the principal's foreseeable obligations and need for maintenance;
1002 (c) minimization of taxes, including income, estate, inheritance, generation-skipping
1003 transfer, and gift taxes;
1004 (d) eligibility for a benefit, program, or assistance under a statute or regulation; and
1005 (e) the principal's personal history of making or joining in making gifts.
1006 Section 42. Section 75-9-301 is enacted to read:
1007
1008 75-9-301. Statutory form power of attorney.
1009 A document substantially in the following form may be used to create a statutory form
1010 power of attorney that has the meaning and effect prescribed by this chapter.
1011
1012
1013 This power of attorney authorizes another person (your agent) to make decisions
1014 concerning your property for you (the principal). Your agent will be able to make decisions
1015 and act with respect to your property (including your money) whether or not you are able to act
1016 for yourself. The meaning of authority over subjects listed on this form is explained in Title
1017 75, Chapter 9, Uniform Power of Attorney Act.
1018 This power of attorney does not authorize the agent to make health care decisions for
1019 you.
1020 You should select someone you trust to serve as your agent. Unless you specify
1021 otherwise, generally the agent's authority will continue until you die or revoke the power of
1022 attorney, or the agent resigns or is unable to act for you.
1023 Your agent is entitled to reasonable compensation unless you state otherwise in the
1024 Special Instructions.
1025 This form provides for designation of one agent. If you wish to name more than one
1026 agent you may name a coagent in the Special Instructions. Coagents are not required to act
1027 together unless you include that requirement in the Special Instructions.
1028 If your agent is unable or unwilling to act for you, your power of attorney will end
1029 unless you have named a successor agent. You may also name a second successor agent.
1030 This power of attorney becomes effective immediately unless you state otherwise in the
1031 Special Instructions.
1032 If you have questions about the power of attorney or the authority you are
1033 granting to your agent, you should seek legal advice before signing this form.
1034
1035 I ________________________________________________________ name the following
1036 (Name of Principal)
1037 person as my agent:
1038 Name of Agent:____________________________________________________________
1039 Agent's Address:___________________________________________________________
1040 Agent's Telephone Number:__________________________________________________
1041
1042 If my agent is unable or unwilling to act for me, I name as my successor agent:
1043 Name of Successor Agent:____________________________________________
1044 Successor Agent's Address: ________________________________________
1045 Successor Agent's Telephone Number:___________________________________
1046 If my successor agent is unable or unwilling to act for me, I name as my second successor
1047 agent:
1048 Name of Second Successor Agent: _____________________________________
1049 Second Successor Agent's Address: __________________________________
1050 Second Successor Agent's Telephone Number: __________________________
1051
1052 I grant my agent and any successor agent general authority to act for me with respect to the
1053 following subjects as defined in Title 75, Chapter 9, Uniform Power of Attorney Act:
1054 (INITIAL each subject you want to include in the agent's general authority. If you wish to grant
1055 general authority over all of the subjects you may initial "All Preceding Subjects" instead of
1056 initialing each subject.)
1057 (___) Real Property
1058 (___) Tangible Personal Property
1059 (___) Stocks and Bonds
1060 (___) Commodities and Options
1061 (___) Banks and Other Financial Institutions
1062 (___) Operation of Entity or Business
1063 (___) Insurance and Annuities
1064 (___) Estates, Trusts, and Other Beneficial Interests
1065 (___) Claims and Litigation
1066 (___) Personal and Family Maintenance
1067 (___) Benefits from Governmental Programs or Civil or Military Service
1068 (___) Retirement Plans
1069 (___) Taxes
1070 (___) All Preceding Subjects
1071
1072 My agent MAY NOT do any of the following specific acts for me UNLESS I have INITIALED
1073 the specific authority listed below:
1074 (CAUTION: Granting any of the following will give your agent the authority to take actions
1075 that could significantly reduce your property or change how your property is distributed at your
1076 death. INITIAL ONLY the specific authority you WANT to give your agent.)
1077 (___) Create, amend, revoke, or terminate an inter vivos trust
1078 (___) Make a gift, subject to the limitations of Section 75-9-217, and any special instructions in
1079 this power of attorney
1080 (___) Create or change rights of survivorship
1081 (___) Create or change a beneficiary designation
1082 (___) Authorize another person to exercise the authority granted under this power of attorney
1083 (___) Waive the principal's right to be a beneficiary of a joint and survivor annuity, including a
1084 survivor benefit under a retirement plan
1085 (___) Exercise fiduciary powers that the principal has authority to delegate
1086 (___) Disclaim or refuse an interest in property, including a power of appointment
1087
1088 An agent that is not my ancestor, spouse, or descendant MAY NOT use my property to benefit
1089 the agent or a person to whom the agent owes an obligation of support unless I have included
1090 that authority in the Special Instructions.
1091
1092 You may give special instructions on the following lines:
1093 ____________________________________________________________________________
1094 ____________________________________________________________________________
1095 ____________________________________________________________________________
1096 ____________________________________________________________________________
1097 ____________________________________________________________________________
1098 ____________________________________________________________________________
1099 ____________________________________________________________________________
1100
1101 This power of attorney is effective immediately unless I have stated otherwise in the Special
1102 Instructions.
1103
1104 If it becomes necessary for a court to appoint a conservator of my estate or guardian of my
1105 person, I nominate the following person(s) for appointment:
1106 Name of Nominee for conservator of my estate: _____________________________________
1107 Nominee's Address:____________________________________________________________
1108 Nominee's Telephone Number:___________________________________________________
1109 Name of Nominee for guardian of my person: _______________________________________
1110 Nominee's Address: ___________________________________________________________
1111 Nominee's Telephone Number:___________________________________________________
1112
1113 Any person, including my agent, may rely upon the validity of this power of attorney or a copy
1114 of it unless that person knows it has terminated or is invalid.
1115
1116 ____________________________________________ _______________
1117 Your Signature Date
1118 ____________________________________________
1119 Your Name Printed
1120 ____________________________________________
1121 ____________________________________________
1122 Your Address
1123 ____________________________________________
1124 Your Telephone Number
1125 State of ____________________________
1126 County of___________________________
1127 This document was acknowledged before me on __________________________,
1128 (Date)
1129 by______________________________________.
1130 (Name of Principal)
1131 ____________________________________________ (Seal, if any)
1132 Signature of Notary
1133 My commission expires: ________________________
1134 [This document prepared by:
1135 __________________________________________________________________
1136 __________________________________________________________________]
1137
1138 Agent's Duties
1139 When you accept the authority granted under this power of attorney, a special legal relationship
1140 is created between you and the principal. This relationship imposes upon you legal duties that
1141 continue until you resign or the power of attorney is terminated or revoked. You shall:
1142 (1) do what you know the principal reasonably expects you to do with the principal's
1143 property or, if you do not know the principal's expectations, act in the principal's best interest;
1144 (2) act in good faith;
1145 (3) do nothing beyond the authority granted in this power of attorney; and
1146 (4) disclose your identity as an agent whenever you act for the principal by writing or
1147 printing the name of the principal and signing your own name as "agent" in the following
1148 manner:
1149 (Principal's Name) by (Your Signature) as Agent
1150 Unless the Special Instructions in this power of attorney state otherwise, you must also:
1151 (1) act loyally for the principal's benefit;
1152 (2) avoid conflicts that would impair your ability to act in the principal's best interest;
1153 (3) act with care, competence, and diligence;
1154 (4) keep a record of all receipts, disbursements, and transactions made on behalf of the
1155 principal;
1156 (5) cooperate with any person that has authority to make health care decisions for the
1157 principal to do what you know the principal reasonably expects or, if you do not know the
1158 principal's expectations, to act in the principal's best interest; and
1159 (6) attempt to preserve the principal's estate plan if you know the plan and preserving
1160 the plan is consistent with the principal's best interest.
1161 Termination of Agent's Authority
1162 You must stop acting on behalf of the principal if you learn of any event that terminates this
1163 power of attorney or your authority under this power of attorney. Events that terminate a power
1164 of attorney or your authority to act under a power of attorney include:
1165 (1) death of the principal;
1166 (2) the principal's revocation of the power of attorney or your authority;
1167 (3) the occurrence of a termination event stated in the power of attorney;
1168 (4) the purpose of the power of attorney is fully accomplished; or
1169 (5) if you are married to the principal, a legal action is filed with a court to end your
1170 marriage, or for your legal separation, unless the Special Instructions in this power of attorney
1171 state that such an action will not terminate your authority.
1172 Liability of Agent
1173 The meaning of the authority granted to you is defined in Title 75, Chapter 9, Uniform Power
1174 of Attorney Act. If you violate Title 75, Chapter 9, Uniform Power of Attorney Act, or act
1175 outside the authority granted, you may be liable for any damages caused by your violation.
1176 If there is anything about this document or your duties that you do not understand, you
1177 should seek legal advice.
1178 Section 43. Section 75-9-302 is enacted to read:
1179 75-9-302. Agent's certification.
1180 The following optional form may be used by an agent to certify facts concerning a
1181 power of attorney.
1182
1183
1184 State of _____________________________
1185 [County] of___________________________
1186 I, _____________________________________________ (Name of Agent), certify under
1187 penalty of perjury that __________________________________________(Name of Principal)
1188 granted me authority as an agent or successor agent in a power of attorney dated
1189 ________________________.
1190 I further certify that to my knowledge:
1191 (1) the principal is alive and has not revoked the power of attorney or my authority to
1192 act under the power of attorney and the power of attorney and my authority to act under the
1193 power of attorney have not terminated;
1194 (2) if the power of attorney was drafted to become effective upon the happening of an
1195 event or contingency, the event or contingency has occurred;
1196 (3) if I was named as a successor agent, the prior agent is no longer able or willing to
1197 serve; and
1198 (4)____________________________________________________________________
1199 ____________________________________________________________________________
1200 ____________________________________________________________________________
1201 ____________________________________________________________________________
1202 (Insert other relevant statements)
1203
1204 ____________________________________________ __________
1205 Agent's Signature Date
1206 ____________________________________________
1207 Agent's Name Printed
1208 ____________________________________________
1209 ____________________________________________
1210 Agent's Address
1211 ____________________________________________
1212 Agent's Telephone Number
1213 This document was acknowledged before me on __________________________,
1214 (Date)
1215 by______________________________________.
1216 (Name of Agent)
1217 ____________________________________________ (Seal, if any)
1218 Signature of Notary
1219 My commission expires: ________________________
1220 This document prepared by:
1221 _________________________________________________________________
1222 Section 44. Section 75-9-401 is enacted to read:
1223
1224 75-9-401. Uniformity of application and construction.
1225 In applying and construing this uniform act, consideration shall be given to the need to
1226 promote uniformity of the law with respect to its subject matter among the states that enact it.
1227 Section 45. Section 75-9-402 is enacted to read:
1228 75-9-402. Relation to Electronic Signatures in Global and National Commerce
1229 Act.
1230 This chapter modifies, limits, and supersedes the federal Electronic Signatures in
1231 Global and National Commerce Act, 15 U.S.C. Sec. 7001 et seq., but does not modify, limit, or
1232 supersede Section 101(c) of that act, 15 U.S.C. Sec. 7001(c), or authorize electronic delivery of
1233 any of the notices described in Section 103(b) of that act, 15 U.S.C. Sec. 7003(b).
1234 Section 46. Section 75-9-403 is enacted to read:
1235 75-9-403. Effect on existing powers of attorney.
1236 Except as otherwise provided:
1237 (1) this chapter applies to a power of attorney created before, on, or after May 10,
1238 2016;
1239 (2) this chapter applies to a judicial proceeding concerning a power of attorney
1240 commenced on or after May 10, 2016;
1241 (3) this chapter applies to a judicial proceeding concerning a power of attorney
1242 commenced before May 10, 2016, unless the court finds that application of a provision of this
1243 chapter would substantially interfere with the effective conduct of the judicial proceeding or
1244 prejudice the rights of a party, in which case that provision does not apply and the superseded
1245 law applies; and
1246 (4) an act done before May 10, 2016, is not affected by this chapter.
1247 Section 47. Repealer.
1248 This bill repeals:
1249 Section 75-5-501, Power of attorney not affected by disability or lapse of time --
1250 Agent responsibilities.
1251 Section 75-5-502, Other powers of attorney not revoked until notice of death or
1252 disability.
1253 Section 75-5-503, Power of attorney -- Prohibitions and restrictions.
1254 Section 75-5-504, Voidable transactions.