Utah Healthcare Power of Attorney Requirements

The individual designates a primary health care agent by name and contact information in the power of attorney for health care, and may name one or more alternate agents who act if the primary agent is unable, unwilling, or unavailable (Utah Code Sections 75A-9-107, 75A-9-110, 75A-9-119).

The statutory optional form lets the individual name one or more alternate agents who act if the primary agent resigns, dies, becomes disqualified, or is otherwise unable, unwilling, or unavailable to serve (Utah Code Sections 75A-9-119, 75A-9-110 Part A). Unless the power of attorney provides otherwise, an alternate agent has the same authority as the original agent for the duration of the original agent's unavailability.

Unless limited in the document, the agent may make any health care decision the individual could make, including consenting to, refusing, or withdrawing treatment and accessing medical records, once the agent's power has commenced (Utah Code Sections 75A-9-101(10), 75A-9-117).

Federal HIPAA regulations govern how the agent can be authorized to access the individual's protected health information once the health care directive is in effect.

By default, an agent's authority commences only when the individual is found, under a documented capacity determination process, to lack capacity to make health care decisions, and ceases if the individual later regains capacity (Utah Code Section 75A-9-117(1)). Utah law does allow the power of attorney to instead state that the agent's authority begins immediately on appointment (Section 75A-9-117(3)), but this is a choice the document must make explicitly, not an automatic default. This document's activation is based on incapacity, which is different from the 'durability' concept in Utah's financial power of attorney law (Title 75A Chapter 2), where authority is effective immediately by default.

Capacity is presumed. The presumption may be rebutted by a contemporaneous examination from a physician, a licensed psychologist, or a specially trained physician assistant or advanced practice registered nurse, or, only in a true emergency with none of those reasonably available, another responsible health care professional, documented in a signed record describing the cause, nature, extent, and probable duration of the incapacity. A second, independent confirming finding is required only if the individual objects to the first finding.

The individual may record preferences about future health care, including life sustaining treatment, artificial nutrition and hydration, and pain relief, either as a standalone health care instruction or combined with the power of attorney for health care in the same document (Utah Code Sections 75A-9-106, 75A-9-110 Part B).

The health care directive Act provides the primary authorization for an agent to consent to organ donation. The optional statutory form includes a dedicated organ, tissue, and body part donation section (Utah Code Sections 75A-9-101(1)(a)(vii), 75A-9-110 Part D).

An individual may create an advance mental health care directive addressing only mental health care, including a dedicated agent appointment for mental health decisions (Utah Code Section 75A-9-108). An agent generally may not consent to the individual's voluntary admission to a mental health facility unless the individual specifically authorized it in the directive and stated a maximum number of days (Section 75A-9-117(5)).

An individual may revoke the appointment of an agent, a default surrogate designation, or a health care instruction, in whole or in part, at any time, by any act clearly showing intent to revoke, including an oral statement to a health care professional, with no written revocation required (Utah Code Section 75A-9-114(1), (2)). Appointing a spouse as agent is automatically revoked, unless the directive says otherwise, once a petition for divorce, annulment, dissolution, legal separation, or termination is filed, not only on a final decree (Section 75A-9-114(4)).

Utah requires only one adult witness, not two, and the witness cannot be the appointed agent, the agent's spouse or cohabitant, or, if the individual resides in a nursing home or assisted living facility, an owner, operator, employee, or contractor of that facility (Utah Code Section 75A-9-107(4)).

Facilities that participate in Medicare and Medicaid must inform patients of their state law rights to make an advance health care directive. A directive made in another state is valid in Utah if it complied with that state's law or complies with Utah's current Act (Utah Code Section 75A-9-115(1)).

The current Act lets an individual nominate a guardian directly within the health care directive itself, both as a general health care instruction (Utah Code Section 75A-9-106(1)(d)) and as a specific optional form field naming the agent or alternate agent as preferred guardian (Section 75A-9-110 Part C.4). A court appointed guardian's decisions are also addressed directly in Section 75A-9-121.

If two or more default surrogates of equal priority disagree on a health care decision, the current Act requires the health care professional to follow the decision of a majority of those who have communicated their views, with a specific tie breaking solicitation procedure if the group is evenly divided (Utah Code Section 75A-9-112). Separately, an individual, surrogate, health care professional, institution, or interested person may petition a court for judicial relief to enjoin or compel a health care decision (Section 75A-9-125).

A health care instruction and a power of attorney for health care may be combined in the same document (Utah Code Section 75A-9-106(4)). If a later advance health care directive conflicts with an earlier one, including a separate mental health care directive, the later directive controls only to the extent of the actual conflict (Sections 75A-9-109, 75A-9-114(3)).