Introduction
The case of Francis W. Gagnon v. Joan G. Coombs was tried in the Appeals Court of Massachusetts in 1995. Francis Gagnon and his wife, an elderly couple, owned a farm in Shelburne Massachusetts and land in Hillsborough, New Hampshire. They had two children, Joan Coombs and Frank Gagnon. Joan suggested that her parents sign powers of attorney appointing her as their agent. Frank was upset when he found out about the POA and convinced his father to revoke the power. Francis revoked but did not tell Joan. Mrs. Gagnon dies two months later and Mr. Gagnon signed a purchase and sale agreement for the Shelburne farm. He gave the property in Hillsborough to Frank. When Mr. Gagnon told Joan about the sale of the land she, not realizing it had been revoked, used her POA to transfer the Shelburne property to a trust that she created and controlled. Mr. Gagnon’s lawyer wrote to Joan demanding that she return the Shelburne property to him, she refused.
There are two issues in this case. Did Joan have the right to convey the Shelburne farm to a trust that she had established? Also, does the property belong to the trust or to Mr. Gagnon?
Uniform Power of Attorney Act of 2006
According to The National Conference of Commissioners on Uniform State Laws, the concept of “power of attorney” was first incorporated into the Uniform Probate Code in 1969 to offer an inexpensive method of surrogate decision making to those whose modest assets did not justify pre-incapacity planning with a trust or post-incapacity property management with a guardianship. Over the years many states adopted non-uniform provisions to deal with issues on with the Uniform Probate Code and the original Uniform Durable Power of Attorney Act were silent. The Uniform Power of Attorney Act was enacted in 2006 and enhances the usefulness of durable powers while protecting the principal, the agent, and those who deal with the agent (Power of Attorney Summary, 2013).
The primary innovation of the Act aimed at preventing abuse is the requirement that the power of attorney contain express language to specifically authorize certain actions that have significant potential for dissipating the principal’s property or altering his estate plan. The Act requires an express grant of authority in order for an agent to create, amend, revoke, or terminate an inter vivos trust; make a gift; create or change rights of survivorship, create or change a beneficiary designation; waive the principal’s right to be a beneficiary of a joint or survivor annuity; exercise fiduciary powers that the principal has the authority to delegate; and disclaim or refuse an interest in property, including a power of appointment. The exercise of authority is subject to constraint by the agent’s fiduciary duties. While it is possible under the Act of an agent to legitimately exercise authority for the primary benefit of the agent, there must be both the authority to engage in the particular transaction and a clear indication of the principal’s expectation that the agent is to exercise the authority for the agent’s benefit (Whitton, 2007).
The Act also requires all agents to act in good faith, within the scope of authority granted, and according to the principal’s expectations if known or in the principal’s best interest if unknown. Unless otherwise provided in a power of attorney, an agent must act loyally for the principal’s benefit, avoid creating a conflict of interest that impairs the ability to act impartially in the principal’s best interest, and attempt to preserve the principals’ estate plan to the extent the plan is known to the agent and preservation is consistent with the principal’s best interest (Whitton, 2007).
Conclusion/Opinion
The fiduciary standard under the common law requires an agent to act “solely” for the benefit of the principal (Whitton, 2007). However, the UPOAA recognizes that loyalty to the principal is not necessarily mutually exclusive with actions that benefit the agent. The Act states that “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.” In the case of Gagnon v. Coombs, Joan Coombs was in clear violation of her fiduciary duty. She acted in her own self-interest while ignoring the wishes of the principal. The principal’s wishes were known based on his actions (he attempted to sale the property so we can assume that was his wish). Therefore, she did not have the right to convey the farm to her trust.
Joan Coomb’s violation of her fiduciary duty is only one reason I felt that she did not have a right to convey the Shelburne farm to a trust that she had established. I also felt that she did not have the right because the UPOAA requires an express grant of authority to transfer property, which she did not have. Not only did she not have an express grant of authority, her power of attorney privileges were revoked by the principal. The Shelburne property should legally belong to Francis Gagnon.

References

Power of Attorney Summary. (2013). Retrieved July 8, 2013, from The Uniform Law Commission: http://www.uniformlaws.org

Whitton, L. S. (2007). Navigating the Uniform Power of Attorney Act. National Academy of Elder Law Attorneys Journal, 1-31.