Durable Power of Attorney – Generally:
A General Durable Power of Attorney (“DPOA”) is a legal document wherein another (the “attorney in fact”) is granted authority to act on behalf of another (the “principal”). The attorney in fact is authorized to manage, transact, dispose of and liquidate the principal’s assets in accordance with the terms of the DPOA. Because of the significant power granted an attorney in fact, a DPOA should only be granted to individuals that the principal finds responsible and trustworthy. However, in order to grant a DPOA the principal must be legally competent at its creation. So, it is very important to create a DPOA when you are competent and healthy than after you are unable to make decisions for yourself. A DPOA is an instrumental and necessary legal document that enables individuals to plan for their care and enjoyment of life after an incapacitating event without requiring family members to file a Guardianship action at Probate Court.
Duties of the Attorney in Fact under a Durable Power of Attorney:
The Attorney in Fact owes a fiduciary duty to act in the best interests of the principal when exercising the powers authorized under the DPOA. As a result, the attorney in fact is prohibited by law from using the DPOA for the attorney in fact’s own purposes, unless specifically authorized in the DPOA.
Violations of Durable Power of Attorney:
Should an attorney in fact under a DPOA misappropriate or misuse the powers conferred under the DPOA, interested parties may seek court intervention. First, a complaint for an accounting can be filed with the Probate Court in the county where the principal resides. This complaint requires the attorney in fact to account for each and every expenditure that the attorney in fact made on behalf of the principal in order to determine if the attorney in fact’s actions were in the best interests of the principal. Additionally, a complaint for concealment may be filed when it is believed that the attorney in fact has acted not in the best interest of the principal, and, has in fact used the powers conferred under the DPOA for the attorney in fact’s own benefit.
At Winkler Legal Services, LLC I represent family members and other beneficiaries in actions involving violation of a Durable Power of Attorney. Unfortunately, it is not uncommon for the attorney in fact to also be the nominated executor under a decedent’s last will. As such, control and access to information relevant to an accounting or concealment action are often obscured.