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and “reimburse the principal or the principal’s successors in interest for [any] attorney’s fees
and costs paid on the agent’s behalf” in connection with the violation;

► Provides that the agent’s duty to provide an affidavit regarding his authority may be met by
providing an “Agent’s Certification and Acceptance of Authority” in the form set forth in the
amended act;

► Broadly defines the term “interested person” and expressly provides that upon petition by such
a person and a finding that the principal lacks capacity to control or revoke the agency, a
court may “construe a power of attorney, review the agent’s conduct, and grant appropriate
relief including compensatory damages”;

► Provides that if an agent has not acted for the benefit of the principal in accordance with the
power and law, or has caused or threatened substantial harm to the principal or his/her prop-
erty, the agent may not collect his attorney’s fee in defending such a claim from the estate of
the principal, and may be ordered to pay the fees of counsel for the state authorities;

► Provides an optional scheme by which the principal may designate another person to
designate successor agents to exercise the powers if an originally-named agent resigns,
dies, becomes incapacitated, becomes disqualified, or declines to serve;

► Provides that an agent is not responsible for the acts of another agent “unless the agent
participates in or conceals a breach of fiduciary duty committed by the other agent” – but then
goes on to impose duties to disclose breaches and imminent breaches of duty by other
fiduciaries and to take “whatever actions may be reasonably appropriate in the circumstances
to safeguard the principal’s best interest”;

► Provides for successor agents to provide those with whom they deal Certifications and
Acceptances of Authority in the form provided in the statute;
► Prohibits appointment of co-agents but provides rules to apply when that rule is broken;

► Provides that powers executed under prior law remain valid and enforceable; and

► Provides that powers executed under other states’ or countries’ laws generally are valid and
enforceable, under circumstances specified in the amended statute.
These changes are made in amendments to the Durable Power of Attorney
Law, Article II of the Power of Attorney Act. However, in some instances (like
the definition of “incapacitated”) the drafters state that the application is to the
“Act”, not the Article. These changes are thus clearly applicable to powers of
attorney for property; their application to powers under the Health Care Power
of Attorney Law (Article IV of the Act) is not always clear. Additional changes to
the property and health-care powers articles will be discussed in the next two
issues of Sharp Thinking, to be issued shortly.

John\SharpThinking/#44.doc

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