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The Durable Power of Attorney's Place in the Family of Fiduciary Relationships Karen E

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The Durable Power of Attorney's Place in the Family of Fiduciary Relationships Karen E University of Washington School of Law UW Law Digital Commons Articles Faculty Publications 2001 The Durable Power of Attorney's Place in the Family of Fiduciary Relationships Karen E. Boxx University of Washington School of Law Follow this and additional works at: https://digitalcommons.law.uw.edu/faculty-articles Part of the Disability Law Commons, and the Estates and Trusts Commons Recommended Citation Karen E. Boxx, The Durable Power of Attorney's Place in the Family of Fiduciary Relationships, 36 Ga. L. Rev. 1 (2001), https://digitalcommons.law.uw.edu/faculty-articles/178 This Article is brought to you for free and open access by the Faculty Publications at UW Law Digital Commons. It has been accepted for inclusion in Articles by an authorized administrator of UW Law Digital Commons. For more information, please contact [email protected]. GEORGIA LAW REVIEW VOLUM 36 FALL 2001 NUMBER 1 ARTICLES THE DURABLE POWER OF ATTORNEY'S PLACE IN THE FAMILY OF FIDUCIARY RELATIONSHIPS Karen E. Boxx* I. INTRODUCTION The durable power of attorney is a deceptively simple document that allows one person to handle the affairs of an incapacitated person without court supervision. It is merely an agency relation- ship, established by a written document, that continues during the principal's incapacity. The durable power of attorney has been in widespread use only for about twenty-five years.1 It is very easy to * Assistant Professor of Law, University of Washington. I gratefully acknowledge the invaluable assistance of Todd Maybrown, whose comments have vastly improved this article, and of Professor Thomas R. Andrews, for his continuing support and guidance. Virginia, by a statute enacted in 1954, was the first state to allow a power of attorney to continue beyond the principal's incapacity, but the concept did not become widely accepted in other states until the Uniform Law Commissioners enacted the Uniform Probate Code in 1969, which included durable power of attorney sections. See VA. CODEANN. § 11-9.2 (Michie 2001); UNIF. PROBATE CODE §§ 5-501 to -505 & prefatory note, 8 U.L.A. 418, 418-24 (1998) (defining and explaining durable power of attorney); FRANCISJ. COLLIN, JR. ErAL., DRAFTING THEDURABLEPOWEROFATrORNEY:ASYSTEMSAPPROACH 5 (1984) (noting adoption of durable GEORGIA LAW REVIEW [Vol. 36:1 draft, and its use escapes most court proceedings or even much need for legal assistance. The durable power of attorney has therefore kept a low profile until now, and any attention it is now receiving focuses primarily on abuse of the document, an admittedly rare occurrence.' However, the durable power of attorney has become extremely widespread as an aging population faces increasing likelihood of periods of disability and as life becomes more compli- cated, requiring more formal arrangements to handle one's financial affairs. This quiet little document creates a unique fiduciary relationship that is overdue for analysis. That analysis can begin to identify and answer the many open questions about the nature of the relation- ship and the scope of duties of an attorney-in-fact. Analysis of the durable power of attorney can also shed light on the broader question that has been open for centuries and is still vigorously debated: what is the nature of a fiduciary? The status of fiduciary is a well-recognized legal concept with a long history,3 but nevertheless retains considerable ambiguity and confusion in application. There are certain discrete categories of fiduciaries-trustees, guardians, agents, executors-with corre- sponding discrete lists of rights, duties, and remedies for breach of duties. Courts have sometimes expanded the role of a fiduciary beyond the traditional categories when circumstances indicate that a person's relationship with another should impose a higher duty. Examples of such relationships include priest or minister-parishio- ner,4 employee-employer, insurance broker-insured, 6 stockbroker- power of attorney statutes by various states occurred throughout 1970's and by 1983, all fifty states had enacted such legislation); see also David M. English, The UPC and the New Durable Powers, 27 REAL PROP. PROB. & TR. J. 333, 337 (1992) (describing evolution and acceptance of durable power of attorney statutes). 2 See E. Thomas Shilling, Report on ACTEC Elder Law Committee Questionnaireon Possible Abuse of FinancialDurable Power of Attorney, 21 AM. C. OFTR. &EST. COUN. NOTES 247, 247-50 (1995) (reporting results of durable power of attorney survey of members of American College of Trust and Estate Counsel). ' See Tamar Frankel, Fiduciary Law, 71 CAL. L. REV. 795, 795 (1983) (noting "the various types of fiduciaries have evolved over the centuries."). ' E.g., Nicholson v. Rose, 165 Cal. Rptr. 156, 159-60 (Ct. App. 1980) (stating minister breached fiduciary duty to plaintiff where confidential relationship was present); Moses v. Diocese of Colo., 863 P.2d 310, 321-23 (Colo. 1993) (stating bishop's superior position and power over plaintiff was sufficient to support finding of fiduciary relationship); Erickson v. Christenson, 781 P.2d 383, 385-86 (Or. Ct. App. 1989) (noting clergy who abuse roles of pastor 20011 DURABLE POWERS OFATTORNEY client7 and school-student.8 However, when expanding the defini- tion of fiduciary, courts have adapted the consequences of that characterization to fit the particular situation. The result is now a patchwork, where the traditional categories are surrounded by situational fiduciaries that borrow from an assortment of the established rules to define the scope of that particular fiduciary's duties. Scholars have long discussed the consequences of the fiduciary label and have tried, without arriving at consensus, to devise a unifying principle or definition of the fiduciary. Much of the discussion has focused on identifying the determining characteristic that makes a relationship "fiduciary" in character. Recently the debate has centered on the question of whether fiduciary duties are merely implied contractual terms, subject to alteration by the parties, or whether fiduciary status is a category separate from contractual relationships.9 The purpose of the discussion is not merely descriptive, but is also intended to aid courts in identifying when the heightened duties and stiffer remedies applicable to fiduciaries are justified. The attorney-in-fact presents a fresh example to use in examin- ing these core concepts because the relationship generally arises in a non-commercial setting and incorporates an unusual level of and counselor can be held liable for breach of 'confidential relationship," analogous to fiduciary relationship). But see Langford v. Diocese of Brooklyn, 677 N.Y.S.2d 436, 438-39 (Sup. Ct. 1998) (stating First Amendment Free Exercise clause precluded examination of fiduciary relationship between priest and parishioner). See generally Janice D. Villiers, ClergyMalpracticeRevisited. LiabilityforSexualMisconduct in the CounselingRelationship, 74 DENV. U. L. Rzv. 1, 37-50 (1996) (arguing clergy-counselee relationship should be deemed fiduciary relationship as matter of law); Lindsey Rosen, ConstitutionalLaw--In Bad Faith" Breach of FiduciaryDuty by the Clergy-F.G. v. MacDonell, 696 A.2d 697 (N.J. 1997), 71 TEMP. L. REV. 743, 745 (1998) (arguing fiduciary relationship should apply to clergy and free exercise clause may not always serve as barrier to liability). ' E.g., Sara Lee Corp. v. Carter, 519 S.E.2d 308, 312-13 (N.C. 1999) (stating employee had fiduciary duty to employer). 6 E.g., Moss v. Appel, 718 So. 2d 199, 201 (Fla.Dist. Ct. App. 1998) (stating insurance broker is in fiduciary relationship with insured). ' E.g., Pace v. McEwen, 574 S.W.2d 792, 796 (Tex. App. 1978) (stating fiduciary relationship existed between stockbroker and his client). B E.g., Schneider v. Plymouth State CoIL, 744 A.2d 101, 105 (N.H. 1999) (stating relationship between post-secondary institution and its students is fiduciary in context of sexual harassment by faculty members). 9 See infra notes 163-231 and accompanying text. GEORGIA LAW REVIEW [Vol. 36:1 discretion. Fitting the attorney-in-fact into this broader discussion not only advances our thinking about the fiduciary principle, but also helps to bring much needed precision to the attorney-in-fact's defined role. Part II of this Article will describe the evolution of the durable power of attorney.1" Part III will summarize general fiduciary principles and their application in both traditional fiduciary roles and fact-based fiduciary settings.1' The precise nature of the fiduciary relationship is subject to considerable debate; that debate is also described in Part III. Part IV discusses how the durable power of attorney, a example of a fiduciary relationship not previously considered in the theoretical debate, illuminates the general discussion. 2 Finally, Part V applies fiduciary principles to the durable power of attorney and points out the numerous ambiguities regarding the attorney-in-fact's duties. This section then makes recommendations to clarify the scope of those duties in order to serve purposes of both curbing abuse of powers of attorney and making them more useful."3 II. HISTORY OF THE DURABLE POWER OF ATTORNEY The power of attorney is simply a written instrument used by a principal to appoint an agent to act on the principal's behalf.'4 The common law principles of agency therefore govern powers of attorney, and since the term attorney-in-fact means an agent appointed via a power of attorney,16 the attorney-in-fact's duties are determined under the laws of agency.' 6 At common law, the agency 10 See infra notes 14-84 and accompanying text. 11 See infra notes 85-214 and accompanying text. 12 See infra notes 215-31 and accompanying text. 13See infra notes 232-335 and accompanying text. 14 1 FLOYD R. MECHEM, A TREATISE ON THE LAW OF AGENCY § 35, at 19 (2d ed. 1914) ("when the [agent's] authority is conferred by formal instrument in writing, it is said to be conferred by 'letter of attorney,' or, more commonly by 'power of attorney.' ") (citation omitted).
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