Power of attorney litigation often occurs in conjunction with trust litigation. While there are similarities between the fiduciary duties of a trustee and attorney-in-fact, there are different statutory regimes and differing duties. As a general matter, a trustee’s fiduciary duties are more stringent and comprehensive than the duties of an attorney-in-fact.
Significantly, the power of attorney laws in Missouri contain a mandatory attorney fee provision. More specifically, the principal, or “successor in interest” to the principal, is entitled to recover their attorney fees when, among other instances, the attorney in fact engages in “willful misconduct” or “acts with willful disregard for the purposes, terms, or conditions of the power of attorney.” Section 404.717.5, RSMo.
A “successor in interest” in this context includes anyone who can prove they have been damaged as a result of the attorney-in-fact’s conduct. This may include a conservator, personal representative, or heir of the principal.