May 16, 2007
DURABLE POWER OF ATTORNEY
By: George Coppolo, Chief Attorney
Kevin E. McCarthy, Principal Analyst
You asked (1) whether there is any state oversight of people granted durable power of attorney and (2) what sanctions might apply if a person granted this power took advantage of the grantor, for example by misappropriating his property.
Ordinarily, there is no state oversight of persons granted power of attorney, according to Thomas Gaffey, chief counsel for Office of the Probate Court Administrator. However, under CGS § 45a-175, the Probate Court has limited jurisdiction over people acting under grants of power of attorney (an “attorney-in-fact”). Upon request, the probate court can demand an accounting of the actions of the attorney-in-fact. This request can only come from the person who granted the power of attorney or his legal representative, e.g., a conservator. Thus, a member of the grantor's family would not be able to request an accounting unless that person was the grantor's legal representative.
The court must determine the rights of the attorney-in-fact and of other parties who have a legal interest in the account. The request for an accounting does not place the power of attorney under the continuing jurisdiction of the Probate Court.
According to Gaffey, such requests are fairly common. While the court does not maintain any statistics in this area, Gaffey believes that in most cases, allegations that an attorney-in-fact has misused his powers are not founded.
The Probate Court has all of the powers available to the Superior Court at law and in equity pertaining to its authority over these accounts. Among other things, the Probate Court can surcharge a fiduciary for breach of trust.
If the attorney-in-fact has abused his powers, his actions may also be a crime. For example, if the attorney-in-fact misappropriated funds, this might constitute larceny and be subject to criminal penalties. His actions may also constitute a tort, for which an injured party could seek recovery in civil court.
If the attorney-in-fact is a member of a state regulated profession (e.g., he is an accountant or an attorney at law), he may subject to disciplinary actions such as license revocation for any misconduct. If his actions violate a professional code of conduct he may also face sanctions.
Connecticut Legal Services has a website http://www.ctelderlaw.org/, that addresses frequently asked questions about power of attorney.