Article, 0816 UTBJ, Vol. 29, No. 4. 32

Author:Mary Shea Tucker, J.
 
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Vol. 29 No. 4 Pg. 32

Utah Bar Journal

August, 2016

July, 2016

The New Utah Uniform Power of Attorney Act –

Powerful New Tool to Prevent Elder Financial Abuse by Agents

Mary Shea Tucker, J.

Elder financial abuse and fiduciary theft are on the rise in the United States. Given the demographics of the aging Baby Boomer population, the growth in these crimes will deprive an increasing number of seniors of their life savings, with no possibility of recovery over time. Family members and trusted others (such as CPAs, attorneys, neighbors, friends) commit a shocking 90% of the reported cases of elder financial abuse in the U.S. See Elder Abuse Fact Sheet, National Council on Aging (March 30, 2010), available at http://www.iue.edu/area9/ Elder-Abuse-Fact-Sheet. pdf (last visited May 31, 2016). Within that category, about two-third of the perpetrators are adult children or spouses of the elderly victim. See id. A former Senior Assistant Attorney General for the State of Washington, John E. Lamp, has stated, “‘Financial Durable Powers of Attorney continue to be the favorite vehicle for large-scale criminal financial exploitation perpetrated upon vulnerable adults.’” Thomas Hilliard, Power Failures Power of Attorney Authority and the Exploitation of Elderly New Yorkers, Schuyler Center for Analysis and Advocacy (Dec. 2006); www.scaany.org/ resources/documents/power_failures.pdf (quoting John E. Lamp, Victimization of the Elderly and Disabled (June 2004)).

During the 2016 General Session, the Utah State Legislature enacted a New Uniform Power of Attorney Act (the New Utah POA Act). The chief sponsors were Representative V. Lowry Snow and Senator Lyle W. Hillyard. There are many valuable features in the New Utah POA Act, and almost all of them are beyond the scope of this article. My purpose herein is to describe one powerful new provision in the New Utah POA Act that can be used by financial institutions and any other third party that receives powers of attorney (POA), in coordination with the Utah Adult Protective Services Statute, to detect and prevent elder financial abuse by unscrupulous agents.

Consider this scenario:

Diane hires a lawyer to draft a durable POA, governed by Utah law, for her 85-year-old mother, Marjorie, who was recently diagnosed with Alzheimer’s. The POA document names Diane as the sole agent. The lawyer never spoke to Marjorie until the day he notarized her signature of the power of attorney document.

POA in hand, Diane drives Marjorie to Marjorie’s bank and Diane is added as agent to Marjorie’s checking account, which has a balance of over $120,000. Marjorie has banked here for years, and she enjoys chatting with the...

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