When does a durable power of attorney become effective in Utah?

Stephen Howard — Stone River Law

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When does a durable power of attorney become effective in Utah?

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A durable power of attorney in Utah is one that is made void by the principal’s disability or incapacity. It can be drafted in a way to make it immediately effective upon being signed and notarized. Or, it can be drafted in a way that makes it become effective only after the principal becomes disabled or incapacitated. Executing a durable power of attorney can be an important part of the estate planning process.

An ordinary power of attorney ceases to be effective at the time the principal becomes incapacitated. But a durable power of attorney may remain effective even if the principal later becomes incapacitated. Unless the instrument itself contains an earlier termination date, the durable power of attorney will remain effective throughout the principal’s incapacity.

One of the purposes of creating a durable power of attorney is to try to avoid the necessity of obtaining a guardianship or conservatorship in the event the principal becomes incapacitated. While a durable power of attorney is often an effective tool to accomplish this goal. There are occasions when a guardianship or conservatorship may still be necessary. Utah Code 75-5-501(5) provides that if a conservator is appointed by a Utah probate court during the period of the principal’s incapacity, then the attorney-in-fact is required to account to the conservator rather than to the principal. The conservator further has the authority to revoke, suspend, or terminate all or just a part of the durable power of attorney.