In an opinion published 11/7/13, the Colorado Court of Appeals ruled on substantial questions relating to the Uniform Power of Attorney Act (UPOA) as it relates to an agent’s duties and the types of activities which a power of attorney (POA) authorizes. In People v. Stell, 2013CA0492, the Court of Appeals reversed and remanded with directions a case involving a criminal indictment of an agent who was acting under a POA. This decision has wide and beneficial implications for principals who have executed POAs and whose agent are acting in their own self-interests, are converting their principal’s assets for the agent’s use or otherwise stealing from them. Here’s a sketch of the factual background of the case. Thanks to Vicki H. for sharing this case with me!
The principal (referred to as “victim” in the opinion) executed a POA in 2009 in Virginia. Both Virginia and Colorado have adopted the UPOA so, even though the statutory cites vary, the law is substantially the same. In the POA, the Principal named as agent his son, the defendant Stell. While acting as agent under the POA, Stell wasted no time liquidating all of principal’s bank accounts, CDs, a 401K account, a piece of real property and the timber sold from that land – to the tune of $453,928.81. The following year, Stell proposed that the principal place other assets into a trust so they would be protected from creditors. The trust document that principal signed at his agent Stell’s direction did not name the principal as beneficiary of such trust and so, principal was permanently deprived of the use and benefit of that property. In October 2010, principal terminated the POA and asked the Denver District Attorney’s office to investigate. As a result of such investigation a nine-count indictment was drawn, eight counts for theft and one count of conspiracy. The appeal of the trial court’s ruling is based on the dismissal of counts 1, 2, 4 and part of 3 – relating to the authority of the agent Stell to transfer principal’s property as agent under the POA. In its dismissal of those counts, the trial court ruled that because the agent Stell had authority under the POA to do anything with the principal’s property that principal could do with it, that Stell couldn’t commit theft against his principal. The Court of Appeals soundly rejected this line of thinking.
The POA is a document that confers broad powers, but it is no license to steal. In this criminal case, the Court of Appeals examined carefully the fiduciary duty owed by an agent to his principal under the UPOA. Citing a Virginia Supreme Court decision, the Court of Appeals stated that “powers of attorney are strictly construed.” (Opin. at para. 17) Going further, the court ruled that the expansive language in a POA should be interpreted narrowly and should be construed in light of the surrounding circumstances. It soundly rejected the argument that, because a POA typically gives a broad grant of authority, it could somehow give an agent the authority to misbehave, commit theft and otherwise breach fiduciary duties owed as a consequence of the nature of the principal-agent relationship.
The fact that a POA contains a broad grant of agent authority does not mean that an agent is nonetheless duty-bound (as in an agent’s fiduciary duty, as described in the UPOA) to exercise authority in acting as agent in the utmost good faith, loyalty, and other duties owed. The Court of Appeals rejected that trial court’s reasoning that a broad grant of authority to the agent implied that an agent’s actions that were in violation of the fiduciary duties owed were somehow still “authorized” because agent was acting under a POA. In paragraph 21 of the decision, the Court of Appeals identified the factual questions appropriate for a jury’s determination of whether an agent under a POA was acting within or outside of his or her scope of authority as determined by agent’s fiduciary duties. They included the following questions of whether agent acted: (1) in accordance with principal’s reasonable expectations and consistently with the principal’s interests and intent; (2) in good faith; (3) loyally for the principal’s benefit; and (4) with the care, competence and diligence ordinarily exercised by agents in similar circumstances. In reversing and remanding the counts of the indictment dismissed by the trial court, the Court of Appeals gives an indication that the days of the POA as a “license to steal” for noncriminal law purposes are over. This is an important development for Colorado – for both the new mandatory reporting of financial exploitation law(read my post about that law here ) as well as the ability of exploited elders and other at-risk persons to recover funds improperly taken from them by an agent under a POA. It gives more protection for principals who have been taken advantage of by their agents to establish that the agent’s conduct was improper and to strengthen the ability to recover such funds that were improperly used or converted for the agent’s exclusive benefit.
©Barbara Cashman 2013 www.DenverElderLaw.org