Autonomy and Protection of the Uniform Power of Attorney Act
The Introduction to the article is below:
The new Uniform Power of Attorney Act (Act), which supersedes the Uniform Durable Power of Attorney Act, was drafted to provide greater guidance for all parties affected by the power of attorney relationship: the principal, the agent, and third persons who are asked to accept the agent’s authority. In determining where to strike the balance between a competent principal’s self-determination interests and an incapacitated principal’s need for protection against unscrupulous agent conduct, the Drafting Committee reviewed state power of attorney legislation, the results of a national survey on power of attorney legislative reform, and feedback from numerous bar associations and professional groups. As Reporter for the Act, I have published articles examining the Act’s fundamental characteristics; the policy implications of balancing protections among the principal, the agent, and third persons; and the lessons learned from using durable powers as an alternative to guardianship. This Article is a more narrowly targeted exploration of the Act’s ramifications for economic planning in the golden years, the topic of this symposium. Specifically, this Article examines features of the Act that facilitate a principal’s autonomous choices as well as those that protect principals who later become incapacitated.
The dual objectives of autonomy in the creation of surrogate authority and protection of incapacitated principals were discussed at length during the drafting process, and they continue to stimulate lively debates within state study committees considering adoption of the Act. Estate planning practitioners, elder protection advocates, and representatives from banking, trust, and insurance companies participated in these discussions. While such debates often view autonomy and protection as competing goals, careful examination of the Act reveals that certain protections may actually increase the latitude that a legislature is willing to afford principals in the creation of durable surrogate authority. The focus of this Article is analysis of that delicate balance.
The first part of this Article examines provisions of the Act that facilitate surrogate implementation of the principal’s choices and goals. This discussion is organized according to the primary objectives of these provisions: (1) flexibility in tailoring delegated authority; (2) clear guidelines for agent conduct; and (3) protection of the principal’s surrogate decision making plan. The second part of this Article explores protections against financial abuse. These provisions are discussed in relation to the primary types of financial abuse: (1) transactions that exceed the intended scope of authority; (2) transactions conducted for self-dealing purposes; and (3) transactions conducted in contravention of the principal’s expectations. Based on the foregoing analyses, the final part of this Article distills insights about the role of durable powers in economic planning for the golden years.