Duties of an Agent Under a Statutory Durable Power of Attorney

Under the Durable Power of Attorney Act, an agent is a fiduciary and is charged with a very high standard of conduct. That fiduciary duty includes the duty of loyalty, good faith, integrity of the strictest kind, fair and honest dealing, and the duty not to conceal matters to disclose all information to the principal. Additionally, fiduciaries owe the principal a duty to inform the principal of all actions the agent takes pursuant to the power of attorney. The agent must also account for actions taken pursuant to the power of attorney. The agent must not use his fiduciary position to further his own interests, unless the principal has full knowledge of the facts and consents.

The agent must consistently maintain records of each transaction and decision the agent makes for the principal. Further, the agent must provide a detailed accounting to the principal upon request.

If the agent fails or refuses to inform the principal, provide documentation, or deliver the accounting within 60 days, the principal may file suit to compel the attorney in fact or agent to deliver the accounting, to deliver the assets, or to terminate the power of attorney. If the agent fails to account fully and comply with the principal’s demand, the agent faces liability for damages and equitable remedies. Additionally, the agent would probably be disqualified from serving as guardian of the estate in a guardianship proceeding

If the agent is sued for breaching a fiduciary duty, the agent bears the burden of showing the validity and fairness of any particular transaction. All transactions between agent and principal are presumptively fraudulent and void, so the fiduciary bears the burden to establish the validity of any transaction in which the fiduciary is involved.