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Can the Agent under a Durable Power of Attorney Hire a New Lawyer?

March 2, 2012

A Massachusetts elder law attorney recently posed an issue on an elder law listserv.  He was hired to file a MassHealth application.   He was hired by the appointed agent (or attorney-in-fact) in a durable power of attorney drafted by another lawyer, and the other lawyer was telling him that t the agent could not hire a lawyer that the elder had never met.   Since the elder is now marginally competent at best, what the drafting lawyer was essentially stating was that he is the only lawyer who can no represent the agent who stands in the shoes of the elder through the durable power of attorney.

My opinion is that the drafting lawyer is simply wrong.  The elder signed a durable power of attorney so that the agent could handle future financial affairs for the elder.   Under principal-agency law, whenever the agent is hiring anybody to help with the elder’s financial affairs, the person who is hired is not being hired to represent the agent, but rather is being hired to represent the elder.   One major reason the elder executed the durable power of attorney was to avoid the need for conservatorship proceedings in Probate Court.  Nowhere in the Massachusetts Uniform Probate Code, which established both the new durable power of attorney laws and the new conservatorship laws in 2009, is there any restriction on who can be hired by an agent under a durable power of attorney or by conservator.

Under the drafting lawyer’s claims that the agent cannot hire a new lawyer now that the elder is perhaps incompetent, the elder would effectively be denied the right to hire, through the agent, a lawyer who practices in a more special area of law than that of the drafting lawyer and conservatorship proceedings would then be necessary for many elders, contrary to their intentions.

I have found no case that upholds the drafting lawyer’s statements, and cannot help but conclude that his claims were a shamelessly self-serving attempt to force the agent to hire him exclusively.

3 Comments leave one →
  1. Donald M. Solomon, Esq. permalink
    June 24, 2013 3:27 pm

    I would tend to agree. I think the drafting attorney is mixing up two different concepts. As a matter of agency law, unless limited by the document, an agent or attorney-in-fact can hire people to provide necessary assistance, whether in the legal, accounting or any other field. By contrast, under professional conduct rules, an attorney at law cannot hire a lawyer outside the firm to provide legal services for the client without the client’s knowledge and consent. Here, the first principle would apply, unless the attorney in fact is also an attorney at law, and even then it would be a close call to balance the agent’s two responsibilities.

  2. Don O'Clair permalink
    June 24, 2013 5:24 pm

    Brian,

    You would seem to be right. Perhaps the drafting attorney was considering issues of whether a principal —who may have had a fiduciary role— could delegate certain duties to others, perhaps by means of Power of Attorney. I do not see the issue at all when the principal is an individual and has given his attorney in fact broad powers.

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