Legal Question in Wills and Trusts in Utah
Difference in State laws with Power of Attorney and Living Wills
My mother lives in Utah and I live in California. She previously had drawn up a Living Will and a Power of Attorney with my sister. She has now decided she no longer trusts my sister enough to handle that responsibility and would like my youngest sister and myself to take that role. She has asked me to draw up some new forms for the Living Will and Power of Attorney. If I do the papers here in California and she's living in Utah. If in the event of my mother being either in a state of needing to be cared for or Pass away from us; how does that work. Will Utah state laws vary from how it works in California? The first set of papers that were drawn up my other sister has a copy of however my mother does not want her to care for her or have any medical decisions made by her in fear of how spiteful she is to my mother.
3 Answers from Attorneys
Re: Difference in State laws with Power of Attorney and Living Wills
If she lives in Utah, she should really have an attorney in Utah prepare a living will and power of attorney, only because she will need to have the power of attorney notarized. It seems to me that it would be easier for her to have an attorney here prepare the documents, and she can sign them while meeting with the attorney, rather than having to have you prepare the documents out-of-state, mail them to her, and then have her go to a bank of other financial institution where they have a notary. Again, this is more a matter of convenience than anything. Utah's statute on living wills does direct that the living will should be the same as in the statute, or substantially similar thereto, but a living will that is legal in the state where it is signed is usually legal anywhere.
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Re: Difference in State laws with Power of Attorney and Living Wills
Your communications is unclear as to who drew up the actual paperwork before. If it was prepared by a Utah attorney, contact that attorney and see if there have been any changes in the law that would effect the papers. If not, the cheapest way is to then either draw up a brand new power of attorney form stating that the old one is no longer effective and to add an amendment to the Will [just an additional page incorporating the prior Will and stating what the change is, but it must be witnessed in the same way as the Will was but not necessarily the same witnesses]. The safer way and the way that you must have your mother do if there has been any change in the statute or case law is to go back to the original attorney and draw up new documents. You can ask beforehand how much it will cost.
Once you have changed the papers, your mother must then notify your sister. If anything happens to our mother, that sister in Utah will be on the scene first so she has to know she is not in charge. I would also notify your mother's family Dr. as he is the one likely to be called if she has health problems; maybe he/she can put a copy of the form in her file.
Re: Difference in State laws with Power of Attorney and Living Wills
I am licensed in Ca and Utah. The forms can be made valid for both states. The existing forms need to be revoked, but that can be done with the new forms. You should also consider a review of her other estate planning documents. You may call for a free consultation.
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