New Uniform Power of Attorney Act Developed to Address Problem
Areas Associated With Durable Powers of Attorney
By Andrew H. Hook,
Esq.
Oast & Hook, P.C., Virginia Beach and Portsmouth, VA
There has been a recent explosion in the use of durable powers of
attorney (DPAs) and resulting litigation. State courts are beginning
to realize the need for guideposts to govern the fiduciary
responsibilities of an agent so that agents can operate efficiently on
behalf of the principal under a DPA, and also so that the principal is
protected from abuse of the power and unnecessary court interventions
and government intrusions are
prevented.1
States have responded by revising their DPA statutes to address
perceived problem areas. As the laws concerning DPAs continue to
develop and evolve, the clear trend is the movement of DPAs from the
common law toward statutory law. This trend is made evident by the
promulgation of the Uniform Power of Attorney Act (UPOAA) by The
National Conference of Commissioners on Uniform State Laws. The UPOAA
is basically a set of default rules that preserves a principal's
freedom to choose both the extent of an agent's authority and the
principles to govern the agent's
conduct.2 Where the UPOAA does
not address an issue, the common law rules of Agency
apply.3 In addition, the UPOAA
facilitates the drafting of DPAs and increases the likelihood of
acceptance by third parties. As states continue to adopt the UPOAA,
there is hope that laws regarding DPAs will become more uniform in
order to encourage greater portability and acceptance of DPAs.
As a result of the explosion in the use of DPAs, attorneys will
frequently be asked to assist clients in implementing DPAs.
Additionally, attorneys will be asked to assist agents in exercising
the authority granted by DPAs, represent third parties to whom DPAs
have been presented for acceptance, and represent interested parties
who are concerned about the use of a DPA and whether the named agent
is abusing his or her authority. Therefore, the representation of
agents and others concerning the use of DPAs will be a growth area in
the practice of law.
For more information, in the Tax Management Portfolios, see
Hook, 859 T.M., Durable Powers of Attorney, and in Tax Practice
Series, see ¶6350, Estate Planning.
1
Russ v. Russ, 2007 WI 83 (Wis. 7/3/2007).
2
UPOAA §121.
3
Id.
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