Utah Code 75-9-114. Agent’s duties
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(1) Notwithstanding provisions in the power of attorney, an agent that has accepted appointment shall:
Terms Used In Utah Code 75-9-114
- Agent: includes an attorney-in-fact under a durable or nondurable power of attorney, an individual authorized to make decisions concerning another's health care, and an individual authorized to make decisions for another under a natural death act. See Utah Code 75-1-201 v2
- Beneficiary: A person who is entitled to receive the benefits or proceeds of a will, trust, insurance policy, retirement plan, annuity, or other contract. Source: OCC
- Conservator: means a person who is appointed by a court to manage the estate of a protected person. See Utah Code 75-1-201 v2
- Court: means any of the courts of record in this state having jurisdiction in matters relating to the affairs of decedents. See Utah Code 75-1-201 v2
- Estate: includes the property of the decedent, trust, or other person whose affairs are subject to this title as originally constituted and as it exists from time to time during administration. See Utah Code 75-1-201 v2
- Gift: A voluntary transfer or conveyance of property without consideration, or for less than full and adequate consideration based on fair market value.
- Incapacity: means incapacitated. See Utah Code 75-1-201 v2
- Interested person: includes heirs, devisees, children, spouses, creditors, beneficiaries, and any others having a property right in or claim against a trust estate or the estate of a decedent, ward, or protected person. See Utah Code 75-1-201 v2
- Obligation: An order placed, contract awarded, service received, or similar transaction during a given period that will require payments during the same or a future period.
- Person: means an individual or an organization. See Utah Code 75-1-201 v2
- Personal representative: includes executor, administrator, successor personal representative, special administrator, and persons who perform substantially the same function under the law governing their status. See Utah Code 75-1-201 v2
- Power of attorney: A written instrument which authorizes one person to act as another's agent or attorney. The power of attorney may be for a definite, specific act, or it may be general in nature. The terms of the written power of attorney may specify when it will expire. If not, the power of attorney usually expires when the person granting it dies. Source: OCC
- Property: includes both real and personal property or any interest therein and means anything that may be the subject of ownership. See Utah Code 75-1-201 v2
- Record: means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form. See Utah Code 75-1-201 v2
- Statute: A law passed by a legislature.
- Writing: includes :(48)(a) printing;(48)(b) handwriting; and(48)(c) information stored in an electronic or other medium if the information is retrievable in a perceivable format. See Utah Code 68-3-12.5(1)(a) act in accordance with the principal’s reasonable expectations to the extent actually known by the agent and, otherwise, in the principal’s best interest;(1)(b) act in good faith;(1)(c) act only within the scope of authority granted in the power of attorney; and(1)(d) comply with the terms of the power of attorney.
(2) Except as otherwise provided in the power of attorney or other provision of this chapter, an agent that has accepted appointment shall have no further obligation to act under the power of attorney. However, with respect to any action taken by the agent under the power of attorney, the agent shall:
(2)(a) act loyally for the principal’s benefit;
(2)(b) act so as not to create a conflict of interest that impairs the agent’s ability to act impartially in the principal’s best interest;
(2)(c) act with the care, competence, and diligence ordinarily exercised by agents in similar circumstances;
(2)(d) keep a record of all receipts, disbursements, and transactions made on behalf of the principal;
(2)(e) cooperate with a person that has authority to make health care decisions for the principal to carry out the principal’s reasonable expectations to the extent actually known by the agent and, otherwise, act in the principal’s best interest; and
(2)(f) attempt to preserve the principal’s estate plan, to the extent actually known by the agent, if preserving the plan is consistent with the principal’s best interest based on all relevant factors, including:
(2)(f)(i) the value and nature of the principal’s property;
(2)(f)(ii) the principal’s foreseeable obligations and need for maintenance;
(2)(f)(iii) minimization of taxes, including income, estate, inheritance, generation-skipping transfer, and gift taxes; and
(2)(f)(iv) eligibility for a benefit, a program, or assistance under a statute, rule, or regulation.
(3) An agent that acts in good faith is not liable to any beneficiary of the principal’s estate plan for failure to preserve the plan.
(4) An agent that acts with care, competence, and diligence for the best interest of the principal is not liable solely because the agent also benefits from the act or has an individual or conflicting interest in relation to the property or affairs of the principal.
(5) If an agent is selected by the principal because of special skills or expertise possessed by the agent or in reliance on the agent’s representation that the agent has special skills or expertise, the special skills or expertise shall be considered in determining whether the agent has acted with care, competence, and diligence under the circumstances.
(6) Absent a breach of duty to the principal, an agent is not liable if the value of the principal’s property declines.
(7) An agent that exercises authority to delegate to another person the authority granted by the principal or that engages another person on behalf of the principal is not liable for an act, error of judgment, or default of that person if the agent exercises care, competence, and diligence in selecting and monitoring the person.
(8) Except as otherwise provided in the power of attorney, an agent is not required to disclose receipts, disbursements, or transactions conducted on behalf of the principal unless ordered by a court or requested by the principal, a guardian, a conservator, another fiduciary acting for the principal, a governmental agency having authority to protect the welfare of the principal, an interested person as defined in Subsection 75-1-201(24) after the principal’s incapacity, or upon the death of the principal, by the personal representative or successor in interest of the principal’s estate. If so requested, within 30 days the agent shall comply with the request or provide a writing or other record substantiating why additional time is needed and shall comply with the request within an additional 30 days.