How Do I Stop Huband's Co-Agent in a Power of Attorney From Exercising Authority Over Our Son?
Full Question:
Answer:
I'm assuming the husband is the father of the 9 month-old. The answer will depend on all the facts involved, such as the wording of the power of attorney, including the nature of the powers granted and whether it states that the agents must act in agreement or not. When two people are appointed by the principal to act as attorney in fact, it is important to determine if both have to act together or if either can operate independently of the other. This should be set forth in the instrument itself.
Typically, a power of attorney may only be revoked or modified by the principal. However, if an agent acts outside her authority or breaches her fiduciary duty, it is possible to petition the court for relief. Injunctive relief consists of a court order called an injunction, requiring an individual to do or not do a specific action. It must be proven that without the injunction, harm will occur which cannot be remedied by money damages. To issue a preliminary injunction, the courts typically require proof that
(1) the movant has a ‘strong’ likelihood of success on the merits;
(2) the movant would otherwise suffer irreparable injury;
(3) the issuance of a preliminary injunction wouldn't cause substantial harm to others; and
(4) the public interest would be served by issuance of a preliminary injunction.
Fiduciaries, such as trustees, owe two main duties to their clients: a duty of loyalty and a duty of care. The duty of loyalty requires that fiduciaries act solely in the interest of their clients, rather than in their own interest. Thus fiduciaries must not derive any direct or indirect profit from their position, and must avoid potential conflicts of interest. The duty of care requires that fiduciaries perform their functions with a high level of competence and thoroughness, in accordance with industry standards. If a fiduciary misuses assets of a client, it is possible to petition for an accounting and/or to have the trustee removed from their position.
The elements of a cause of action for breach of fiduciary duty are:
(1) Plaintiff and Defendant share a relationship whereby:
(a) Plaintiff reposes trust and confidence in Defendant, and
(b) Defendant undertakes such trust and assumes a duty to advise, counsel and/or
protect Plaintiff;
(2) Defendant breaches its duties to Plaintiff; and
(3) Plaintiff suffers damages.
The elements of a claim for breach of fiduciary duty are not fixed as the claim may arise from virtually any case where one party accepts the trust and assumes the duty to protect a weaker party.
Affirmative defenses to a claim for breach of fiduciary duty can include, but are not limited to:
(1) The passing of the statute of limitations for filing the claim.
(2) Lack of fiduciary relationship (for example, when the parties did not enter a fiduciary relationship, but rather conducted business in an arm’s length transaction there is no duty to protect the other party or disclose facts which the other party could have discovered by its own diligence.)
(3) Lack of standing
(4) Approval (for example, if the alleged actions followed full disclosure to and the consent of the Plaintiff)
(5) Business judgment rule (ex. that the corporate fiduciary's actions were motivated by a bona fide interest in the well being of the corporation where shareholders are the ones owed the fiduciary duty)
Please see the following MO statutes:
404.707. Principal may appoint multiple attorneys in fact — authority may
be joint or several — qualifications — persons disqualified. —
1. A principal may appoint more than one attorney in fact in one or more
powers of attorney and may provide that the authority conferred on two or
more attorneys in fact shall or may be exercised either jointly or
severally or in a manner, with such priority and with respect to such
subjects as is provided in the power of attorney.
2. Any person, other than a person who is disqualified from being
appointed a guardian or conservator of the principal under subsection 2 of
section 475.055, RSMo, shall be qualified to be designated an attorney in
fact under a durable power of attorney.
3. The designation of a person not qualified to act as an attorney in
fact for a principal under a durable power of attorney subjects the
person to removal as attorney in fact but does not affect the immunities
of third persons nor relieve the unqualified person of any duties or
responsibilities to the principal or the principal's successors.
404.710. Power of attorney with general powers. —
1. A principal may delegate to an attorney in fact in a power of attorney
general powers to act in a fiduciary capacity on the principal's behalf
with respect to all lawful subjects and purposes or with respect to one or
more express subjects or purposes. A power of attorney with general powers
may be durable or not durable.
2. If the power of attorney states that general powers are granted to the
attorney in fact and further states in substance that it grants power to
the attorney in fact to act with respect to all lawful subjects and
purposes or that it grants general powers for general purposes or does not
by its terms limit the power to the specific subject or purposes set out in
the instrument, then the authority of the attorney in fact acting under the
power of attorney shall extend to and include each and every action or
power which an adult who is nondisabled and nonincapacitated may carry out
through an agent specifically authorized in the premises, with respect to
any and all matters whatsoever, except as provided in subsections 6 and 7
of this section. When a power of attorney grants general powers to an
attorney in fact to act with respect to all lawful subjects and purposes,
the enumeration of one or more specific subjects or purposes does not limit
the general authority granted by that power of attorney, unless otherwise
provided in the power of attorney.
3. If the power of attorney states that general powers are granted to
an attorney in fact with respect to one or more express subjects or
purposes for which general powers are conferred, then the authority of the
attorney in fact acting under the power of attorney shall extend to and
include each and every action or power, but only with respect to the
specific subjects or purposes expressed in the power of attorney that an
adult who is nondisabled and nonincapacitated may carry out through an
agent specifically authorized in the premises, with respect to any and
all matters whatsoever, except as provided in subsections 6 and 7 of this
section.
4. Except as provided in subsections 6 and 7 of this section, an attorney
in fact with general powers has, with respect to the subjects or purposes
for which the powers are conferred, all rights, power and authority to act
for the principal that the principal would have with respect to his or her
own person or property, including property owned jointly or by the
entireties with another or others, as a nondisabled and nonincapacitated
adult; and without limiting the foregoing has with respect to the subjects
or purposes of the power complete discretion to make a decision for the
principal, to act or not act, to consent or not consent to, or withdraw
consent for, any act, and to execute and deliver or accept any deed, bill
of sale, bill of lading, assignment, contract, note, security instrument,
consent, receipt, release, proof of claim, petition or other pleading, tax
document, notice, application, acknowledgment or other document necessary
or convenient to implement or confirm any act, transaction or decision. An
attorney in fact with general powers, whether power to act with respect to
all lawful subjects and purposes, or only with respect to one or more
express subjects or purposes, shall have the power, unless specifically
denied by the terms of the power of attorney, to make, execute and deliver
to or for the benefit of or at the request of a third person, who is
requested to rely upon an action of the attorney in fact, an agreement
indemnifying and holding harmless any third person or persons from any
liability, claims or expenses, including legal expenses, incurred by any
such third person by reason of acting or refraining from acting pursuant to
the request of the attorney in fact, and such indemnity agreement shall be
binding upon the principal who has executed such power of attorney and upon
the principal's successor or successors in interest. No such indemnity
agreement shall protect any third person from any liability, claims or
expenses incurred by reason of the fact that, and to the extent that, the
third person has honored the power of attorney for actions outside the
scope of authority granted by the power of attorney. In addition, the
attorney in fact has complete discretion to employ and compensate real
estate agents, brokers, attorneys, accountants and subagents of all types
to represent and act for the principal in any and all matters, including
tax matters involving the United States government or any other government
or taxing entity, including, but not limited to, the execution of
supplemental or additional powers of attorney in the name of the principal
in form that may be required or preferred by any such taxing entity or
other third person, and to deal with any or all third persons in the name
of the principal without limitation. No such supplemental or additional
power of attorney shall broaden the scope of authority granted to the
attorney in fact in the original power of attorney executed by the
principal.
5. An attorney in fact, who is granted general powers for all subjects
and purposes or with respect to any express subjects or purposes, shall
exercise the powers conferred according to the principal's instructions, in
the principal's best interest, in good faith, prudently and in accordance
with sections 404.712 and 404.714.
6. Any power of attorney, whether durable or not durable, and whether or
not it grants general powers for all subjects and purposes or with respect
to express subjects or purposes, shall be construed to grant power or
authority to an attorney in fact to carry out any of the actions described
in this subsection if the actions are expressly enumerated and authorized
in the power of attorney. Any power of attorney may grant power of
authority to an attorney in fact to carry out any of the following actions
if the actions are expressly authorized in the power of attorney:
(1) To execute, amend or revoke any trust agreement;
(2) To fund with the principal's assets any trust not created by the
principal;
(3) To make or revoke a gift of the principal's property in trust or
otherwise;
(4) To disclaim a gift or devise of property to or for the benefit of the
principal;
(5) To create or change survivorship interests in the principal's
property or in property in which the principal may have an interest;
provided, however, that the inclusion of the authority set out in this
paragraph shall not be necessary in order to grant to an attorney in fact
acting under a power of attorney granting general powers with respect to
all lawful subjects and purposes the authority to withdraw funds or other
property from any account, contract or other similar arrangement held in
the names of the principal and one or more other persons with any financial
institution, brokerage company or other depository to the same extent that
the principal would be authorized to do if the principal were present, not
disabled or incapacitated, and seeking to act in the principal's own
behalf;
(6) To designate or change the designation of beneficiaries to receive
any property, benefit or contract right on the principal's death;
(7) To give or withhold consent to an autopsy or postmortem examination;
(8) To make a gift of, or decline to make a gift of, the principal's body
parts under the Uniform Anatomical Gift Act;
(9) To nominate a guardian or conservator for the principal; and if so
stated in the power of attorney, the attorney in fact may nominate himself
as such;
(10) To give consent to or prohibit any type of health care, medical
care, treatment or procedure to the extent authorized by sections 404.800
to 404.865; or
(11) To designate one or more substitute or successor or additional
attorneys in fact.
7. No power of attorney, whether durable or not durable, and whether or
not it delegates general powers, may delegate or grant power or authority
to an attorney in fact to do or carry out any of the following actions for
the principal:
(1) To make, publish, declare, amend or revoke a will for the principal;
(2) To make, execute, modify or revoke a living will declaration for the
principal;
(3) To require the principal, against his or her will, to take any action
or to refrain from taking any action; or
(4) To carry out any actions specifically forbidden by the principal
while not under any disability or incapacity.
8. A third person may freely rely on, contract and deal with an attorney
in fact delegated general powers with respect to the subjects and purposes
encompassed or expressed in the power of attorney without regard to whether
the power of attorney expressly identifies the specific property, account,
security, storage facility or matter as being within the scope of a subject
or purpose contained in the power of attorney, and without regard to
whether the power of attorney expressly authorizes the specific act,
transaction or decision by the attorney in fact.
9. It is the policy of this state that an attorney in fact acting
pursuant to the provisions of a power of attorney granting general powers
shall be accorded the same rights and privileges with respect to the
personal welfare, property and business interests of the principal, and if
the power of attorney enumerates some express subjects or purposes, with
respect to those subjects or purposes, as if the principal himself or
herself were personally present and acting or seeking to act; and any
provision of law and any purported waiver, consent or agreement executed or
granted by the principal to the contrary shall be void and unenforceable.
10. Sections 404.700 to 404.735 shall not be construed to preclude any
person or business enterprise from providing in a contract with the
principal as to the procedure that thereafter must be followed by the
principal or the principal's attorney in fact in order to give a valid
notice to the person or business enterprise of any modification or
termination of the appointment of an attorney in fact by the principal; and
any such contractual provision for notice shall be valid and binding on the
principal and the principal's successors so long as such provision is
reasonably capable of being carried out.
404.717. Modification and termination of power of attorney — liability
between principal and attorney in fact. —
1. As between the principal and attorney in fact or successor attorney in
fact, and any agents appointed by either of them, unless the power of
attorney is coupled with an interest, the authority granted in a power of
attorney shall be modified or terminated as follows:
(1) On the date shown in the power of attorney and in accordance with the
express provisions of the power of attorney;
(2) When the principal, orally or in writing, or the principal's legal
representative with approval of the court in writing informs the attorney
in fact or successor that the power of attorney is modified or terminated,
or when and under what circumstances it is modified or terminated;
(3) When a written notice of modification or termination of the power of
attorney is filed by the principal or the principal's legal representative
for record in the office of the recorder of deeds in the city or county of
the principal's residence or, if the principal is a nonresident of the
state, in the city or county of the residence of the attorney in fact last
known to the principal, or in the city or county in which is located any
property specifically referred to in the power of attorney;
(4) On the death of the principal, except that if the power of attorney
grants authority under subdivision (7) or (8) of subsection 6 of section
404.710, the power of attorney and the authority of the attorney in fact
shall continue for the limited purpose of carrying out the authority
granted under either or both of said subdivisions for a reasonable length
of time after the death of the principal;
(5) When the attorney in fact under a durable power of attorney is not
qualified to act for the principal;
(6) On the filing of any action for divorce or dissolution of the
marriage of the principal and the principal's attorney in fact who were
married to each other at or subsequent to the time the power of attorney
was created, unless the power of attorney provides otherwise.
2. Whenever any of the events described in subsection 1 of this
section operate merely to terminate the authority of the particular person
designated as the attorney in fact, rather than terminating the power of
attorney, if the power of attorney designates a successor or contingent
attorney in fact or prescribes a procedure whereby a successor or
contingent attorney in fact may be designated, then the authority provided
in the power of attorney shall extend to and vest in the successor or
contingent attorney in fact in lieu of the attorney in fact whose power and
authority was terminated under any of the circumstances referred to in
subsection 1 of this section.
3. As between the principal and attorney in fact or successor, acts and
transactions of the attorney in fact or successor undertaken in good faith,
in accordance with section 404.714, and without actual knowledge of the
death of the principal or without actual knowledge, or constructive
knowledge pursuant to subdivision (3) of subsection 1 of this section, that
the authority granted in the power of attorney has been suspended, modified
or terminated, relieves the attorney in fact or successor from liability to
the principal and the principal's successors in interest.
4. This section does not prohibit the principal, acting individually, and
the person designated as the attorney in fact from entering into a written
agreement that sets forth their duties and liabilities as between
themselves and their successors, and which expands or limits the
application of sections 404.700 to 404.735, with the exception of those
acts enumerated in subsection 7 of section 404.710.
5. As between the principal and any attorney in fact or successor, if
the attorney in fact or successor undertakes to act, and if in respect to
such act, the attorney in fact or successor acts in bad faith,
fraudulently or otherwise dishonestly, or if the attorney in fact or
successor intentionally acts after receiving actual notice that the power
of attorney has been revoked or terminated, and thereby causes damage or
loss to the principal or to the principal's successors in interest, such
attorney in fact or successor shall be liable to the principal or to the
principal's successors in interest, or both, for such damages, together
with reasonable attorney's fees, and punitive damages as allowed by law.
404.727. Accounting, determination of disability, modification and
termination, limitation or removal of attorney in fact and limitations for
principal to bring actions. —
1. The principal may petition the court for an accounting by the
principal's attorney in fact or the legal representative of the attorney in
fact. If the principal is disabled, incapacitated or deceased, a petition
for accounting may be filed by the principal's legal representative, an
adult member of the principal's family or any person interested in the
welfare of the principal.
2. Any requirement for an accounting may be waived or an accounting may
be approved by the court without hearing, if the accounting is waived or
approved by a principal who is not disabled, or by a principal whose legal
capacity has been restored, or by all creditors and distributees of a
deceased principal's estate whose claims or distributions theretofore have
not been satisfied in full. The approval or waiver shall be in writing,
signed by the affected persons and filed with the court.
3. For the purposes of subsection 2 of this section, a legal
representative or a person providing services to the principal's estate
shall not be considered a creditor of the principal's estate; and no
express approval or waiver shall be required from the legal
representative of a disabled or incapacitated principal if the
principal's legal capacity has been restored, or from the personal
representative of a deceased principal's estate, or from any other person
entitled to compensation or expense for services rendered to a disabled,
incapacitated or deceased principal's estate, unless the principal or the
principal's estate is unable to pay in full the compensation and expense
to which the person rendering the services may be entitled.
4. The principal, the principal's attorney in fact, an adult member of
the principal's family or any person interested in the welfare of the
principal may petition the probate division of the circuit court in the
county or city where the principal is then residing to determine and
declare whether a principal, who has executed a power of attorney, is a
disabled or incapacitated person.
5. If the principal is a disabled or incapacitated person, on petition of
the principal's legal representative, an adult member of the principal's
family or any interested person, including a person interested in the
welfare of the principal, for good cause shown the court, may:
(1) Order the attorney in fact to exercise or refrain from exercising
authority in a durable power of attorney in a particular manner or for a
particular purpose;
(2) Modify the authority of an attorney in fact under a durable power of
attorney;
(3) Declare suspended a power of attorney that is not durable;
(4) Terminate a durable power of attorney;
(5) Remove the attorney in fact under a durable power of attorney;
(6) Confirm the authority of an attorney in fact or a successor attorney
in fact to act under a durable power of attorney; and
(7) Issue such other orders as the court finds will be in the best
interest of the disabled or incapacitated principal, including appointment
of a guardian or conservator for the principal.
6. If, after notice and hearing, the court determines that there has been
a prima facie showing that the principal is a disabled or incapacitated
person and that the attorney in fact has breached his fiduciary duty to the
principal or that there is a reasonable likelihood that he may do so in the
immediate future, the court may, in its discretion, issue an order that
some or all of the authority granted by the power of attorney be suspended
or modified, and that a different attorney in fact be authorized to
exercise some or all of the powers granted by the power of attorney. Such
attorney in fact may be designated by the court. The court may require any
person petitioning for any such order to file a bond in such amount and
with such sureties as required by the court to indemnify either the
attorney in fact who has been acting on behalf of the principal or the
principal and the principal's successors in interest for the expenses,
including attorney's fees, incurred by any such persons with respect to
such proceeding. The court may, after hearing, allow payment or enter
judgment for any such amount in the manner as provided by subsection 6 of
section 404.731. None of the actions described in this subsection shall be
taken by the court until after hearing upon reasonable notice to all
persons identified in a verified statement supplied by the petitioner who
is requesting such action identifying the immediate relatives of the
principal and any other persons known to the petitioner to be interested in
the welfare of the principal; except that in the event of an emergency as
determined by the court, the court may, without notice, enter such
temporary order as seems proper to the court, but no such temporary order
shall be effective for more than thirty days unless extended by the court
after hearing on reasonable notice to the persons identified as herein
provided.
7. If a power of attorney is suspended or terminated by the court or the
attorney in fact is removed by the court, the court may require an
accounting from the attorney in fact and order delivery of any property
belonging to the principal and copies of any necessary records of the
attorney in fact concerning the principal's property and affairs to a
successor attorney in fact or the principal's legal representative.
8. In a proceeding under sections 404.700 to 404.735 or in any other
proceeding, or upon petition of an attorney in fact or successor, the court
may:
(1) Require or permit an attorney in fact under a durable power of
attorney to account;
(2) Authorize the attorney in fact under a durable power of attorney to
enter into any transaction, or approve, ratify, confirm and validate any
transaction entered into by the attorney in fact that the court finds is,
was or will be beneficial to the principal and which the court has power to
authorize for a guardian or conservator under chapter 475, RSMo; and
(3) Relieve the attorney in fact of any obligation to exercise authority
for a disabled or incapacitated principal under a durable power of
attorney.
9. Unless previously barred by adjudication, consent or limitation, any
cause of action against an attorney in fact or successor for breach of duty
to the principal shall be barred as to any principal who has received an
account or other statement fully disclosing the matter unless a proceeding
to assert the cause of action is commenced within two years after receipt
of the account or statement by him or, if the principal is a disabled or
incapacitated person, by a guardian or conservator of his estate; provided
that, if a disabled or incapacitated person has no guardian or conservator
of his estate at the time an account or statement is presented, then the
cause of action shall not be barred until one year after the removal of the
principal's disability or incapacity, one year after the appointment of a
conservator for the principal, or one year after the death of the
principal. The cause of action thus barred does not include any action to
recover from an attorney in fact or successor for fraud, misrepresentation
or concealment related to the settlement of any transaction involving the
agency relationship of the attorney in fact with the principal.
404.730. Scope and application of law — application of law to nondurable
powers of attorney. —
1. Sections 404.700 to 404.735 apply to the acts and transactions in this
state of attorneys in fact under powers of attorney executed in this state
or by residents of this state; and also apply to acts and transactions of
attorneys in fact in this state or outside this state under powers of
attorney that refer to the durable power of attorney law of Missouri in the
instrument creating the power of attorney, if any of the following
conditions are met:
(1) The principal or attorney in fact was a resident of this state at the
time the power of attorney was executed;
(2) The powers and authority conferred relate to property, acts or
transactions in this state;
(3) The acts and transactions of the attorney in fact or successor
occurred or were to occur in this state;
(4) The power of attorney was executed in this state; or
(5) There is otherwise a reasonable relationship between this state and
the subject matters of the power of attorney.
The power of attorney so created remains subject to sections 404.700 to
404.735 despite a subsequent change in residence of the principal or the
attorney in fact and any successor, or the removal from this state of
property which was the subject of the power of attorney.
2. A person who acts as an attorney in fact or successor pursuant to a
power of attorney governed by sections 404.700 to 404.735 is subject to
personal jurisdiction in this state with respect to matters relating to
acts and transactions of the attorney in fact or successor performed in
this state, performed for a resident of this state or affecting property in
this state.
3. Sections 404.700 to 404.735 shall not be construed as providing an
exclusive method for creating powers of attorney that are in fact durable
or that may be durable as to one or more acts by reason of the fact that
the attorney in fact or other person has a property or contract interest in
the authority conferred.
4. Sections 404.700 to 404.735 shall not be construed to apply to powers
of attorney that are not durable except where specifically so stated; and
sections 404.700 to 404.735, insofar as they apply to powers of attorney
that are not durable, are intended to be declaratory of existing law.
5. A durable power of attorney that purports to have been made under the
provisions of the uniform durable power of attorney act or a substantially
similar law of another state is governed by the law of the designated state
and, if durable where executed, is durable and may be carried out and
enforced in this state.
6. A power of attorney, whether durable or not, executed by a resident of
another state, may authorize the carrying out in this state of all acts
permitted to be delegated to an agent by the laws of the state of the
residence of the principal, the laws of the state where the power of
attorney is executed, or the laws of this state, whichever law is most
favorable toward authorizing such delegation, and is durable if so
designated either under the laws of this state, under the laws of the state
of residence of the principal, or under the laws of the state where the
power of attorney is executed.