General/Durable Power of Attorney
When executing (signing) a general durable power of attorney, the signature should be notarized by a notary public. The process of executing a power of attorney under Utah’s Uniform Power of Attorney Act is established in Utah Code 75-9-105. Subsection (1) states that a power of attorney “shall be signed . . . before a notary public or other individual authorized by law to take acknowledgments.” Subsection (1) further creates a presumption that the signature is genuine if the principal acknowledges the signature before a notary public or other individual who is authorized by law to take acknowledgments.
Utah Code 75-6-106(1) states that a power of attorney executed in Utah after the enactment of the Uniform Power of Attorney Act “is valid if its execution complies with Section 75-9-105.” Some have noted that the statute does not expressly invalidate a the power of attorney that does not comply with Section 75-9-105. But best practices dictate that the power of attorney be notarized.
Medical Power of Attorney (Advance Health Care Directive)
Utah’s Advance Health Care Directive, as authorized under Chapter 2a of the Utah Uniform Probate Code (Title 75), includes a medical power of attorney in addition to its living will provisions. The execution of the directive does not require notarization. Instead, Utah law requires only one person to witness the signing of the directive.
The witness must not be related to the declarant (either by blood or by marriage), must not be entitled to inherit either as an heir or under any will or codicil, must not be a beneficiary under any life insurance policy or other pay on death account, and generally must not be entitled to benefit financially upon the death of the declarant. Further, the witness cannot be a person directly responsible for the declarant’s medical care, must not be a health care provider involved in caring for the declarant, and cannot be either the appointed agent or alternate agent.
Note that the rules on who may serve as a witness for an Advance Health Care Directive apply only to the witness. A person named as an agent or alternate agent is not subject to the requirements for a witness. To the contrary, it is most common that both the agent and the alternate agent will be related to the declarant by either blood or marriage.
Power of Attorney for a Minor Child
A power of attorney may be used to designate another person to act on behalf of a parent or guardian in matters relating to the parent’s or guardian’s powers regarding the care, custody, or property of a minor child or incapacitated adult. Section 75-5-103 provides simply (and somewhat ambiguously) that the delegation of such authority must be done “by a properly-executed power of attorney.” Although the language of the statute is ambiguous, the power of attorney should be signed and notarized.
In any of the situations discussed above, consultation with a good attorney is recommended.
