The Scope of An Attorney-In-Fact

There are only a few courts that have discussed whether anattorney-in-fact may act based upon “the authority granted in the power of attorney.”In one of the more recent cases, the Georgia Court of Appeals decided a casethat dealt with “whether an attorney-in-fact can perform an act that theprincipal refused to perform.”

In this case, Dennison Williams and Darius Peterson jointlyowned real property. Williams executed a power of attorney appointingPeterson’s wife Anita. In the power of attorney, “Williams authorized Anita tosell real property.” The issue arose when Williams tried to sell his interestin the jointly owned property to man named Eugene Harris. In an effort toprevent him from selling, Anita presented Williams with a quitclaim deed thatwould transfer his interest to Peterson. He refused to sign the quitclaim soAnita signed the deed for him, claiming that she could as his attorney-in-fact.She filed the signed deed in the superior court. Williams would later do thesame, except he transferred his interest to Harris. Peterson brought suitagainst Harris, claiming trespass and damage to property. According toBryan Cave Fiduciary Litigation, “Harris filed a third-party complaint againstAnita and Williams claiming fraud.” Anita moved for summary judgment on thegrounds that she acted within her authority as the power of attorney.

While the trial court agreed with Anita, the Georgia Courtof Appeals disagreed. In Harris v. Peterson, the court ruled that Anita hadexceeded the scope of her authority as his power of attorney.  The court relied on two different theories.First, the court stated that a factual issue still exists in this case becauseof the legal theory of agency. While it is understood that an agent may act onbehalf of a principal, the grantor of the power of attorney still has theauthority to act. The question remains whether Williams granted Anita theauthority to act in this instant. This determination should be based onWilliams’ intent in light of the circumstances. The second theory is based uponethics. The court stated that under agency law, an agent cannot self-deal. Thisis what Anita did when she transferred the property to her husband. The courttransferred the case to the trial court.

See Luke Lantta, How Far Does The Scope of AnAttorney-In-Fact’s Authority Extend?, BryanCaveFiduciaryLitigation.com, Dec.18, 2012.

Special thanks to Brian Cohan (Attorney at Law, Law Offices of Brian J. Cohan, P.C.) for bringing this article to my attention.