Powers of attorney are regulated by state law and those laws vary substantially. In 2006, the Uniform Law Commissioners (who draft and propose model state laws) approved the Uniform Power of Attorney Act. Among other goals, the Uniform Power of Attorney Act aims to prevent, detect and redress power of attorney abuse.
Although Montana currently provides statutory guidelines for financial powers of attorney, it does not contain a clear statement of the fiduciary duties of agents who are given this power, nor does it provide clear liability for the abuse of these powers. The Uniform Power of Attorney Act provides those protections as well as other helpful provisions for persons who want to use a power of attorney to give another person the ability to make financial decisions for them.
Specifically, the new law will:
- Prohibit self-dealing and clearly state the fiduciary responsibilities of the agent, who must spend the principal’s money in their best interest.
Preserve the principal’s estate plan.
- Make abusive agents liable for restoring stolen property and assets.
- Make clear that a power of attorney terminates upon death.
- Improve detection of possible power of attorney abuse.
- Set forth clear agent duties and prohibitions that make civil actions and criminal prosecutions possible.
“The power of attorney is a powerful tool for older Montanans and people with disabilities of all ages. It provides a way for people to get help with financial decisions, while helping them avoid complicated and costly conservatorships or guardianships,” said Joy Bruck, AARP Montana State President. "The majority of powers of attorney work very well, but when they don't work they cause tremendous hardship. This is why AARP Montana supported the uniform power of attorney legislation that protects vulnerable Montanans from fraud and financial abuse.”
The new law goes into effect on October 1, 2011.