Power of Attorney Litigation, Attorney Fees

An attorney-in-fact for a principal under a power of attorney has a fiduciary obligation to act in the best interests of the principal consistent with the terms of the power of attorney document. When an attorney-in-fact breaches his or her obligations, the principal, a family member of the principal or some other successor in interest has a potential claim for damages against the attorney-in-fact.

While the general rule is that a party has to cover his or her attorney fees win or lose, there is a partial exception for this in Missouri’s power of attorney law. Under Section 404.717.5, RSMo, a plaintiff may be entitled to attorney fees under certain circumstances: (1) the attorney-in-fact engages in willful misconduct or fraud; (2) acts with willful disregard for the purposes, terms, or conditions of the power of attorney; or (3) if the attorney-in-fact improperly acts under the power of attorney after receiving actual notice that the power of attorney has been revoked or terminated.

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