POWER OF ATTORNEY: An Alternative to Guardianship
What is a power of attorney?
Another alternative to guardianship is a Power of Attorney document. A Power of Attorney is a legal document in which one person (called the “principal”) gives to another person (the “agent,” or sometimes called the “attorney in fact”) authority to act on behalf of the principal. The person who is the agent only has the authority to act in the areas outlined in the Power of Attorney forms (ex: financial or medical, but not overall the areas of a person’s life). A power of attorney can be very broad, allowing the agent to perform a variety of tasks. For example:
- handling bank accounts
- selling real property
- running a business
- applying for public benefits
It can also be very limited and restrict the agent to one or more very specific tasks. For example, selling one specific piece of real property. The agent cannot use the principal’s assets in a way that is against the principal’s wishes. A well-written power of attorney can be a helpful legal tool to allow someone else to handle a person’s financial matters without the need for more complex arrangements like a trust or a court-appointed guardian or conservator, which removes many or all of the person’s decision-making authority. A well-written power of attorney can also help protect against possible financial exploitation and abuse.
A lawyer experienced in estate planning is the most appropriate person to write a power of attorney and give advice about what is needed in specific and unique situations. There are several power of attorney forms available on the internet but they may be too general for a specific circumstance. They may not follow the requirements of Utah law, or they may not protect against financial exploitation and abuse.
Benefits of a Power of Attorney:
- The agent is chosen by the individual
- Low cost or free in some cases
- No court time required
- Authority is outlined in the document
- The form is easily accessible
Limitations of a Power of Attorney:
- The principal has to have the capacity to understand what they are signing
- If the document is challenged the court may be needed to enforce it
- The principal can choose anyone to be the agent, creating the possibility of being taken advantage of
- The document is usually over limited areas of the person’s life.
The agent is the person appointed by the principal to handle the duties stated in the power of attorney document. See Utah Code Section 75-9-114 for the full list of an agent’s duties.
A principal can appoint more than one agent and have two co-agents, for example. Unless the power of attorney states otherwise, each co-agent may exercise their authority independently. In addition, a principal can nominate a successor agent or agents to step in if the first agent resigns, dies, becomes incapacitated, is not qualified to serve, or declines to serve.
The agent also has the authority under HIPAA (the federal Health Insurance Portability and Accountability Act) to access the principal’s private health care information and communicate with the principal’s health care providers unless the power of attorney specifically restricts that authority. However, the power of attorney does not authorize the agent to make health care decisions for the principal. For health care decisions, an Advanced Health Care Directive will be needed.
Executing a power of attorney under Utah law:
The power of attorney document must be signed by the principal before a notary public. If the principal is not able to physically sign the document, then another person acting at the principal’s direction in the principal’s conscious presence may sign the document before a notary public.
If the principal lives or is about to live in a hospital, assisted living, skilled nursing, or similar facility, at the time of execution of the power of attorney, the principal may not name any agent that is the owner, operator, health care provider, or employee of the hospital, assisted living facility, skilled nursing, or similar residential care facility unless the agent is the spouse, legal guardian, or next of kin of the principal, or unless the agent’s authority is strictly limited to the purpose of assisting the principal to establish eligibility for Medicaid.
Use these links to access more information and Power of Attorney forms: