Friday, May 20, 2016
Danica J. Brustkern recently published an article entitled, With Great Power Comes Great Culpability: Addressing Agency Costs in Durable Powers of Attorney, Real Property, Trust and Estate Law Journal, Winter (2016). Provided below is her synopsis of the article:
This Article discusses alternative methods for monitoring those who become agents under durable powers of attorney. A durable power of attorney presents an easily abused principal/agent relationship because the principal is unable to monitor the agent once the principal has lost capacity. Because durable powers of attorney involve agency costs that are similar to those seen in the context of trusts and guardianships, this Article looks to the methods of monitoring the “agents” in each of those relationships and discusses whether these methods could—or should—be adopted for use in the context of durable powers of attorney. Ultimately, this Article finds that adapting the concept of a “trust protector” to durable powers of attorney could address the agency costs in these relationships with minimal sacrifice of the aspects of durable powers that made them so popular and useful to begin with.