Article 2 - Duties of Attorneys-in-Fact

California Probate Code — §§ 4230-4238

Sections (10)

Added by Stats. 1994, Ch. 307, Sec. 16. Effective January 1, 1995.

(a)Except as provided in subdivisions (b) and (c), a person who is designated as an attorney-in-fact has no duty to exercise the authority granted in the power of attorney and is not subject to the other duties of an attorney-in-fact, regardless of whether the principal has become incapacitated, is missing, or is otherwise unable to act.

(b)Acting for the principal in one or more transactions does not obligate an attorney-in-fact to act for the principal in a subsequent transaction, but the attorney-in-fact has a duty to complete a transaction that the attorney-in-fact has commenced.

(c)If an attorney-in-fact has expressly agreed in writing to act for the principal, the attorney-in-fact has a duty to act pursuant to the terms of the agreement. The agreement to act on behalf of the principal is enforceable against the attorney-in-fact as a fiduciary regardless of whether there is any consideration to support a contractual obligation.

§ 4231

Amended by Stats. 2010, Ch. 48, Sec. 1. (SB 1038) Effective January 1, 2011.

(a)Except as provided in subdivision (b), in dealing with property of the principal, an attorney-in-fact shall observe the standard of care that would be observed by a prudent person dealing with property of another and is not limited by any other statute restricting investments by fiduciaries.

(b)An attorney-in-fact who has special skills or expertise or was designated as an attorney-in-fact on the basis of representations of special skills or expertise shall observe the standard of care that would be observed by others with similar skills or expertise.

§ 4231.5

Amended by Stats. 2013, Ch. 99, Sec. 2. (AB 381) Effective January 1, 2014.

(a)If the attorney-in-fact breaches a duty pursuant to this division, the attorney-in-fact is chargeable with any of the following, as appropriate under the circumstances:

(1)Any loss or depreciation in value of the principal’s property resulting from the breach of duty, with interest.

(2)Any profit made by the attorney-in-fact through the breach of duty, with interest.

(3)Any profit that would have accrued to the principal if the loss of profit is the result of the breach of duty.

(b)If the

attorney-in-fact has acted reasonably and in good faith under the circumstances as known to the attorney-in-fact, the court, in its discretion, may excuse the attorney-in-fact in whole or in part from liability under subdivision (a) if it would be equitable to do so.

(c)If a court finds that a person has in bad faith wrongfully taken, concealed, or disposed of property that belongs to a principal under a power of attorney, or has taken, concealed, or disposed of property that belongs to a principal under a power of attorney by the use of undue influence in bad faith or through

the commission of elder or dependent adult financial abuse, as defined in Section 15610.30 of the Welfare and Institutions Code, the person shall be liable for twice the value of the property recovered by an action to recover the property or for surcharge. In addition, except as otherwise required by law, including Section 15657.5 of the Welfare and Institutions Code, the person may, in the court’s discretion, be liable for reasonable attorney’s fees and costs to the prevailing party. The remedies

provided in this section shall be in addition to any other remedies available in law to the principal or any successor in interest of the principal.

§ 4232

Added by Stats. 1994, Ch. 307, Sec. 16. Effective January 1, 1995.

(a)An attorney-in-fact has a duty to act solely in the interest of the principal and to avoid conflicts of interest.

(b)An attorney-in-fact is not in violation of the duty provided in subdivision (a) solely because the attorney-in-fact also benefits from acting for the principal, has conflicting interests in relation to the property, care, or affairs of the principal, or acts in an inconsistent manner regarding the respective interests of the principal and the attorney-in-fact.

§ 4233

Added by Stats. 1994, Ch. 307, Sec. 16. Effective January 1, 1995.

(a)The attorney-in-fact shall keep the principal’s property separate and distinct from other property in a manner adequate to identify the property clearly as belonging to the principal.

(b)An attorney-in-fact holding property for a principal complies with subdivision (a) if the property is held in the name of the principal or in the name of the attorney-in-fact as attorney-in-fact for the principal.

§ 4234

Added by Stats. 1994, Ch. 307, Sec. 16. Effective January 1, 1995.

(a)To the extent reasonably practicable under the circumstances, an attorney-in-fact has a duty to keep in regular contact with the principal, to communicate with the principal, and to follow the instructions of the principal.

(b)With court approval, the attorney-in-fact may disobey instructions of the principal.

§ 4235

Added by Stats. 1994, Ch. 307, Sec. 16. Effective January 1, 1995.

If the principal becomes wholly or partially incapacitated, or if there is a question concerning the capacity of the principal to give instructions to and supervise the attorney-in-fact, the attorney-in-fact may consult with a person previously designated by the principal for this purpose, and may also consult with and obtain information needed to carry out the attorney-in-fact’s duties from the principal’s spouse, physician, attorney, accountant, a member of the principal’s family, or other person, business entity, or government agency with respect to matters to be undertaken on the principal’s behalf and affecting the principal’s personal affairs, welfare, family, property, and business interests. A person from whom information is requested shall disclose relevant information to the attorney-in-fact. Disclosure under this section is not a waiver of any privilege that may apply to the information disclosed.

§ 4236

Added by Stats. 1994, Ch. 307, Sec. 16. Effective January 1, 1995.

(a)The attorney-in-fact shall keep records of all transactions entered into by the attorney-in-fact on behalf of the principal.

(b)The attorney-in-fact does not have a duty to make an account of transactions entered into on behalf of the principal, except in the following circumstances:

(1)At any time requested by the principal.

(2)Where the power of attorney requires the attorney-in-fact to account and specifies to whom the account is to be made.

(3)On request by the conservator of the estate of the principal while the principal is living.

(4)On request by the principal’s personal representative or successor in interest after the death of the principal.

(5)Pursuant to court order.

(c)The following persons are entitled to examine and copy the records kept by the attorney-in-fact:

(1)The principal.

(2)The conservator of the estate of the principal while the principal is living.

(3)The principal’s personal representative or successor in interest after the death of the principal.

(4)Any other person, pursuant to court order.

(d)This section is not subject to limitation in the power of attorney.

§ 4237

Added by Stats. 1994, Ch. 307, Sec. 16. Effective January 1, 1995.

An attorney-in-fact with special skills has a duty to apply the full extent of those skills.

§ 4238

Added by Stats. 1994, Ch. 307, Sec. 16. Effective January 1, 1995.

(a)On termination of an attorney-in-fact’s authority, the attorney-in-fact shall promptly deliver possession or control of the principal’s property as follows:

(1)If the principal is not incapacitated, to the principal or as directed by the principal.

(2)If the principal is incapacitated, to the following persons with the following priority:

(A)To a qualified successor attorney-in-fact.

(B)As to any community property, to the principal’s spouse.

(C)To the principal’s conservator of the estate or guardian of the estate.

(3)In the case of the death of the principal, to the principal’s personal representative, if any, or the principal’s successors.

(b)On termination of an attorney-in-fact’s authority, the attorney-in-fact shall deliver copies of any records relating to transactions undertaken on the principal’s behalf that are requested by the person to whom possession or control of the property is delivered.

(c)Termination of an attorney-in-fact’s authority does not relieve the attorney-in-fact of any duty to render an account of actions taken as attorney-in-fact.

(d)The attorney-in-fact has the powers reasonably necessary under the circumstances to perform the duties provided by this section.