§ 15-14-714 — Agent's duties

(1) Notwithstanding provisions in the power of
attorney, an agent that has accepted appointment shall:

(a) Act in accordance with the principal's reasonable expectations to the
extent actually known by the agent and, otherwise, in the principal's best interest;

(b) Act in good faith; and

(c) Act only within the scope of authority granted in the power of attorney.

(2) Except as otherwise provided in the power of attorney, an agent that has
accepted appointment shall:

(a) Act loyally for the principal's benefit;

(b) Act so as not to create a conflict of interest that impairs the agent's
ability to act impartially in the principal's best interest;

(c) Act with the care, competence, and diligence ordinarily exercised by
agents in similar circumstances;

(d) Keep a record of all receipts, disbursements, and transactions made on
behalf of the principal;

(e) Cooperate with a person that has authority to make health-care decisions
for the principal to carry out the principal's reasonable expectations to the extent
actually known by the agent and, otherwise, act in the principal's best interest; and

(f) Attempt to preserve the principal's estate plan, to the extent actually
known by the agent, if preserving the plan is consistent with the principal's best
interest based on all relevant factors, including:

(I) The value and nature of the principal's property;

(II) The principal's foreseeable obligations and need for maintenance;

(III) Minimization of taxes, including income, estate, inheritance, generation-skipping transfer, and gift taxes; and

(IV) Eligibility for a benefit, a program, or assistance under a statute or
regulation.

(3) An agent that acts in good faith is not liable to any beneficiary of the
principal's estate plan for failure to preserve the plan.

(4) An agent that acts with care, competence, and diligence for the best
interest of the principal is not liable solely because the agent also benefits from the
act or has an individual or conflicting interest in relation to the property or affairs of
the principal.

(5) If an agent is selected by the principal because of special skills or
expertise possessed by the agent or in reliance on the agent's representation that
the agent has special skills or expertise, the special skills or expertise must be
considered in determining whether the agent has acted with care, competence, and
diligence under the circumstances.

(6) Absent a breach of duty to the principal, an agent is not liable if the value
of the principal's property declines.

(7) An agent that exercises authority provided in the power of attorney to
delegate to another person the authority granted by the principal or that engages
another person on behalf of the principal is not liable for an act, error of judgment,
or default of that person if the agent exercises care, competence, and diligence in
selecting and monitoring the person.

(8) Except as otherwise provided in the power of attorney, an agent is not
required to disclose receipts, disbursements, or transactions conducted on behalf
of the principal unless ordered by a court or requested by the principal, a guardian,
a conservator, another fiduciary acting for the principal, a governmental agency
having authority to protect the welfare of the principal, or, upon the death of the
principal, by the personal representative or successor in interest of the principal's
estate. If so requested, within thirty days the agent shall comply with the request or
provide a writing or other record substantiating why additional time is needed and
shall comply with the request within an additional thirty days.

Legislative History

Source: L. 2009: Entire part added, (HB 09-1198), ch. 106, p. 390, � 1, effective April 9.