Welcome to CPA at Law, helping individuals and small businesses plan for the future and keep what they have.

This is the personal blog of Sterling Olander, a Certified Public Accountant and Utah-licensed attorney. For over seven years, I have assisted clients with estate planning and administration, tax mitigation, tax controversies, small business planning, asset protection, and nonprofit law.

I write about any legal, tax, or technological information that I find interesting or useful in serving my clients. All ideas expressed herein are my own and don't constitute legal or tax advice.

Utah's New Uniform Power of Attorney Act

Utah's new Uniform Power of Attorney Act went into effect on May 10, 2016. A power of attorney is a document with which an individual, known as the principal, grants authority to an agent to act in his or her place and is an important component of an estate plan.

One the most notable features of the new act compared to Utah's old act is that the new act provides an optional statutory power of attorney form, located here. Even though a power of attorney is valid even if it does not conform to the statutory form, the statutory form will likely become the standard form in Utah and for that reason, may attorneys will likely adopt some version of the statutory form.

Existing powers of attorney are still valid under the new act, assuming they were valid under the old act, and they may actually be more effective now than under the old act. This is because under the new act, a third party must generally either accept an acknowledged power of attorney or request a certification or an opinion of counsel regarding the power of attorney. As long as the certification or opinion is provided, the third party is generally liable for refusing to accept the power of attorney. A statutory form certification is part of the new act. In other words, there is less opportunity for a third party to reject a power of attorney under the new act as there was under the old act, an issue I discussed in a prior post.

On the other hand, existing powers of attorney may no longer be sufficient to grant the agent the same powers that the agent would have had under the old act. This is because under the new act, an agent can take certain actions on behalf of the principal only if the power of attorney expressly grants the agent that authority. For example, the power to make gifts on behalf of an incapacitated principal is occasionally useful as an estate tax reduction strategy, but any existing power of attorney that doesn't specifically grant this power will not be effective in giving that authority to the agent.

The new act provides a good opportunity for Utahans to pull our their estate planning documents and consider whether their existing power of attorney is appropriate for their needs. A well-drafted power of attorney will provide peace of mind and pay for itself many times over if it negates the need for a conservatorship or prevents waste of an incapacitated principal's assets.