What are the Responsibilities and Liabilities as an Agent Under a Power of Attorney or Conservatorship?

Although most Connecticut residents know it is a good idea to have an Elder Law attorney create legal documents designating those responsible for making financial and personal decisions, fewer residents know the responsibilities and liabilities of being named as an agent in these documents.

According to Connecticut law, a fiduciary relationship is one in which one party (known as the principal) has entrusted the other party (known as the fiduciary) to act on behalf of the interests of the principal.

You have “fiduciary responsibilities” if you are named by the Elder to serve in any of the following capacities:

  • Agent under a Power of Attorney;
  • Trustee of a living trust;
  • Conservator of Person and Estate (appointed by Probate Court).

Principal–agent law governs responsibilities in the Power of Attorney. An Agent designated under a Power of Attorney has no duty to act, but if s/he acts, s/ he must do so in the best interests of the Elder. The Principal (Elder) in a Power of Attorney relationship is still presumed competent and able to act, so there is no finding of incapacity necessary to trigger the Power of Attorney’s authority and thus no duty to act.

In contrast to the Principal in a Power of Attorney relationship, a Conserved Person (Elder who is conserved) is no longer legally capable of conducting or transacting his/her own personal and/or financial affairs.

In Connecticut, the decision-making authority of a Conservator of the Elder’s Estate (meaning his/her assets) “trumps” the decision-making authority of another party names in a Power of Attorney. However, the authority of a Conservator is limited to the State in which the probate court is located- if the Conserved Person leaves the State, the authority “dies.” The Court of Probate may limit the authority of the Conservator, and most important decisions require the Court’s approval, including sales of the Elder’s real property and significant personal property, or a change in the residence of the Conserved Person.

Both Conservators and Agents under Power of Attorney cease having authority to act upon the Elder’s death. At that point, authority over the Elder’s assets will be made by the named Executor under a Will (or the administrator, if there is no valid Will).

Increasingly, both Agents under Power of Attorney and Conservators have been sued by nursing facilities as “responsible parties” if the costs of an Elder’s nursing home care is not covered by private funds or Medicaid (Title XIX) benefits. Care must be taken by the Agent or the Conservator to avoid liability under the terms of nursing home admission contracts and to seek professional help from an elder law attorney when getting the Elder ready for a spenddown of assets and applying for Medicaid benefits.

If you or someone close to you is serving as Agent under Power of Attorney or Conservator, we encourage you to have a consultation with us to understand your responsibilities and avoid costly mistakes, especially in the complex area of Medicaid eligibility.

-D. Jeanne Messick, Esq.

Disclaimer: While this blog provides general information, it does not constitute legal advice. The best way to get guidance on your specific legal issue is to contact a lawyer. To schedule a meeting with an attorney, please call one of our lawyers at (860) 316-2741. The use of the Internet or this form for communication with the firm or any individual member of the firm does not establish an attorney-client relationship.