Liability of an Attorney-in-Fact – Minnesota Powers of Attorney
Liability of an Attorney-in-Fact;
Minnesota Powers of Attorney
Liability of a Minnesota Attorney-in-Fact; Misconduct
An attorney-in-fact is personally liable to any person, including the principal, who is injured by:
- an action taken by the attorney-in-fact in bad faith under the power of attorney, or
- the attorney-in-fact’s failure to account when the attorney-in-fact has a statutory duty to account.
Liability of a Minnesota Attorney-in-Fact; Treble Damages
In addition, an attorney-in-fact who:
- knowingly executes a false affidavit regarding the attorney-in-fact’s authority under a power of attorney, or
- signs a document on behalf of a principal knowing that the power of attorney has either been revoked, or has terminated,
is liable for treble the amount of damages suffered by the principal.
Liability of a Minnesota Attorney-in-Fact; Criminal
In addition to civil liability, an attorney-in-fact may face criminal charges from a Minnesota County attorney if any of the principal’s assets are misappropriated.
Liability of a Minnesota Attorney-in-Fact; an Accounting
An attorney-in-fact appointed pursuant to a Minnesota power of attorney has a duty under the Minnesota power of attorney statutes to render an accounting with respect to transactions entered into by the attorney-in-fact on behalf of the principal, when:
(1) requested to do so at any time by the principal;
(2) the instrument conferring the power of attorney:
- requires that the attorney-in-fact render accountings, and
- specifies to whom the accounting must be delivered; or
(3) the attorney-in-fact has reimbursed the attorney-in-fact for any expenditure the attorney-in-fact has made on behalf of the principal.
Under the Minnesota power of attorney statutes, an accounting is defined as a written statement that gives reasonable notice of all transactions entered into by the attorney-in-fact on behalf of the principal.
However, once a matter comes under the jurisdiction of the probate court under either the Minnesota Power of Attorney statutes, or the Minnesota conservatorship statutes, the court may require greater detail and supporting evidence of all entries identified on an accounting.
Liability of a Minnesota Attorney-in-Fact; Judicial Supervision
In the absence of any petition seeking judicial relief, there is no review by the court of the actions of an attorney-in-fact.
Liability of a Minnesota Attorney-in-Fact; Court Jurisdiction After August 1, 2013
After August 1, 2013, the Minnesota power of attorney statutes provide that any “interested person” – as that term is defined under the Minnesota conservatorship statutes – may petition the court:
- for a protective order directing an attorney-in-fact to provide an accounting, on a schedule directed by a court, or
- for any other relief as provided in the Minnesota conservatorship statutes – which may include seeking the appointment of a limited or unlimited conservator.
The definition of an interested person under the Minnesota conservatorship statutes is somewhat flexible, but likely includes:
- the principal,
- any nominated or duly appointed Guardian or Conservator for the principal,
- the principal’s spouse, parent, adult children and siblings, or in some cases the principal’s “next of kin”,
- a health care agent or proxy appointed pursuant to a health care directive, or
- an adult person who has lived with the principal for a period of more than six months.
Liability of a Minnesota Attorney-in-Fact; Court Jurisdiction Prior to, and after, August 1, 2013
Since at least 2003, the Minnesota conservatorship statutes have provided that the following persons are authorized to petition the probate court for the appointment of a Conservator, or for any other appropriate protective order relating to the property and affairs of a principal, if misbehavior by an attorney-in-fact is suspected:
- any individual interested in the estate, affairs, or welfare, of the principal, or
- a person who would be adversely affected by the lack of effective management of the property and business affairs of the principal.
As part of the proceeding, the probate court may require that an accounting be provided to the petitioner.
Any right of a petitioner to seek the jurisdiction of the court under the conservatorship statutes may be in addition to his or her right to seek the jurisdiction of the court under the power of attorney statutes.
Liability of a Minnesota Attorney-in-Fact; Examine and Copy the Records
The Minnesota Power of Attorney statutes provide that in addition to the principal, the following persons are entitled to examine and copy the records of an attorney-in-fact appointed pursuant to a Minnesota power of attorney:
- a person designated by the principal in the document creating the power of attorney as the recipient of any required accountings,
- the guardian or conservator of the estate of the principal while the principal is living, and
- the personal representative of the estate of the principal, after the principal’s death.
What if One Attorney-in-Fact Does Not Agree with Actions Taken by Another Attorney-in-Fact on Behalf of a Principal?
When two or more attorneys-in-fact are authorized to act on behalf of a principal pursuant to a Minnesota power of attorney, an attorney-in-fact who does not join with, or consent to, the action of one or more other attorneys-in-fact, is not liable for such action.
In addition, the failure of an attorney-in-fact to object to the action of one or more other attorneys-in-fact does not constitute a consent to such action.
Liability of a Minnesota Attorney-in-Fact; Recovery of Attorney Fees
The Minnesota Power of Attorney statutes provide that after August 1, 2013, either:
- the principal, or
- a person named by the principal in the power of attorney document to receive accountings,
is entitled to recover reasonable attorney fees and costs if the court finds that the attorney-in-fact failed to render an accounting to:
- the principal, or
- any person named by the principal in the power of attorney document to receive accountings,
after the duty to render an accounting arose.
This is one area where a principal, and certain other family members, may significantly benefit if the principal had a Minnesota licensed attorney prepare and supervise the execution of Minnesota Statutory Short Form Power of Attorney document form, by properly identifying a family member who is entitled to:
- receive an accounting from the attorney-in-fact, and
- recover any attorney fees which are necessary in order to force an attorney-in-fact to produce an accounting when one is required by statute.
Obtaining the right to receive attorney fees from a misbehaving attorney-in-fact can be a significant deterrent to improper conduct by such an attorney-in-fact.
Conclusion – Liability of a Minnesota Attorney-in-Fact
Please contact Minnesota Attorney Gary C. Dahle for assistance when you have suspicion of misbehavior by an attorney-in-fact with respect to a Minnesota Power of Attorney.
Copyright 2017 – All Rights Reserved.
No claim to original government works.
Gary C. Dahle – Attorney at Law
2704 County Road 10, Mounds View, MN 55112
Phone: 763-780-8390 Fax: 763-780-1735
Information provided herein is only for general informational and educational purposes. The laws relating to Minnesota powers of attorney involve many complex legal issues.
If you have a specific legal problem about which you are seeking advice, either consult with your own attorney or retain an attorney of your choice.
Gary C. Dahle, Attorney at Law, is licensed to practice law only in the State of Minnesota, and in the State of North Dakota, in the United States of America.
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