Legal Articles

Strict Construction, Implied Authority to Act as Attorney-in-Fact

Power of attorney instruments are “strictly construed.” In re Estate of Lambur, 397 S.W.3d 54, 65 (Mo. App. S.D. 2013). While the definition of strict construction varies depending on who you ask, most agree that it calls for a more narrow, literal interpretation of a document. A strict construction, though, does not preclude “implied authority to…

Common Law Fiduciary Duties

Trustees, personal representatives, attorneys-in-fact, corporate directors, limited liability company managers, etc. owe fiduciary duties. Generally speaking, a fiduciary duty is where one person has a legal obligation to act in another’s interests. Whether a fiduciary duty exists is a question of law, while breach of fiduciary duty is usually a question of fact. Scanwell Freight…

Powers of Attorney, Dealings with Third Persons

While powers of attorney are useful tools to allow one person (the attorney-in-fact) to act another person’s behalf (the principal), third-parties are sometimes distrustful of a power of attorney. A power of attorney is relatively easy to create. There are many forms online, including from state bar associations, that seemingly anyone can print and use….

Power of Attorney Litigation, Attorney Fees

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…

Power of Attorney and Attorney-in-Fact Liability

Power of attorney instruments for finances are common estate planning tools. The parties to a power of attorney are the principal and attorney-in-fact. The principal designates and nominates the attorney-in-fact to engage in specified and authorized activities on the principal’s behalf. The attorney-in-fact is a fiduciary and must act in the principal’s interests. The relationship…

Power of Attorney Litigation

A power of attorney (“POA”) is a legal document where a principal appoints an attorney-in-fact to take actons on the principal’s behalf. The authority granted to an attorney-in-fact most often pertains to financial decisions and healthcare decisions. An attorney-in-fact owes a fiduciary duty to the principal and must act in the principal’s best interests.  The probate…

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