A durable power of attorney is a written instrument under which an individual appoints another person as attorney in fact or agent. By executing the durable power of attorney, the principal authorizes the agent to engage in the certain specified business or financial transactions on behalf of the principal with third parties. The durable power of attorney is a contract, which creates an agency–principal relationship.
Durable means that the authority of the agent to act on behalf of the principal survives the disability of the principal. Under Utah laws, disability or incapacity of principal has the same effect as if the principal were competent and not disabled. However, the principal must convey this intent through clear wording[i]. A durable power of attorney does not lapse because of the passage of time unless the instrument creating the power of attorney specifically states a time limitation. Furthermore, a revocation of a durable power of attorney is not effective as to a third party relying on the power of attorney, until the third party receives actual notice of the revocation. In addition, when an agent acts in good faith, death of a principal of a durable power of attorney does not terminate the power of the agent until actual knowledge of principal’s death. A durable power of attorney for a real property transaction must be recorded.
[i] UT ST § 75-9-104