Gerner & Kearns Co., L.P.A.

Agents Under the New Kentucky Power of Attorney Law -- Pt. 2

Today we continue our discussion of Kentucky's recent adoption of provisions of the Uniform Power of Attorney Act. In this Part 2, we will talk about the duties of an agent who has accepted appointment.

Standards Applied to an Agent

Of course, accepting the duties and powers of an agent creates a relationship with a high level of trust. The law reflects the expectation that the agent has significant fiduciary responsibility. The new statute specifically requires that an agent always:

  • Act in accord with the principal's "reasonable expectations" as known to the agent
  • Act in the best interest of the principal
  • Exercise power in good faith
  • Stay within the scope of the power granted in the document

Unless the power of attorney document says otherwise, the agent must:

  • Behave loyally and for the benefit of the principal
  • Not create any conflict of interest that would impair impartiality
  • Act using "care, competence, and diligence" of an agent in a similar situation
  • Keep complete business and transaction records
  • Work in concert with a person who has the power to make medical decisions for the principal to see that the principal's reasonable wishes known to the agent are carried out or to act in the best interest of the principal
  • Act to preserve the estate plan of the principal so long as it is in the principal's best interest

As we explained in Part 1 of this post, Kentucky's new power of attorney law is quite complicated with a level of detail beyond this series of posts. Any person or business facing a situation involving a Kentucky power of attorney should seek legal advice from an experienced attorney.

In Part 3 of this series, we will provide information about new protections for third parties who must rely on the validity of appointments and the good faith exercise of powers of attorney by agents.

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