An agent is someone you chose to act on your behalf. If an agent acts on your behalf and under the scope of his or her authority, then you will more likely than not be bound to his or her decisions. However, your agent has the fiduciary duty to act with the highest degree of good faith on your behalf. If your agent failed to act under the scope of his or her authority or acted against your best interest, then he or she is liable to you and to your successors in interest.
THE PROCEDURE IN YOUR CLAIM AGAINST YOUR AGENT
1. File a petition in court requesting the judge to terminate your agent’s authority, to remove the agent, or to grant an appropriate relief.
2. Show the court that you shared a relationship with your agent where you placed your trust and confidence in him or her; and your agent undertook such trust and assumed a duty to advice, counsel, and/or protect you.
3. Allege that your agent breached one of his or her fiduciary duties.
• Non-mandatory fiduciary duties: You can modify these duties on the document that granted power to your agent to act on your behalf.
i. Duty of loyalty: Your agent must act solely in your interest.
ii. Duty of care: Your agent must perform his or her functions with a high level of competence and thoroughness according to his or her level of skill and expertise
• Mandatory fiduciary duties: These duties are not subject to modification.
i. Duty to act in good faith: Your agent must act in good faith, within the scope of his or her authority, and not contrary to your best interests and expectations as actually known by him or her.
ii. Non-delegation of authority: agent may not delegate authority to a third person to act on your behalf.
iii. Keep records: Your agent must keep detailed records concerning all transactions he or she engages in on your behalf.
iv. Keep your money separated: Your agent must keep his or her money separated from yours. The agent must create and maintain an accurate inventory each time he or she access your income or safe-deposit box.
4. Prove that your agent’s breach caused you to suffer damages. For example, if your agent’s breach negatively affected one of your properties he or she will be liable for the amount required to restore the value of your property to what it would have been had the violation not occurred. The agent must also reimburse you or your successors in interest for the attorney’s fees and costs paid in an action brought against him.
Seek Assistance of an Estate Attorney
Before filing a claim against an agent, it is important to understand the elements of the claim and the available defenses. For example, an agent is not liable if the value of the principal’s property declines unless he or she breaches one of his or her fiduciary duties. For an estate attorney in Florida, call the Law Office of David M. Goldman PLLC at (904) 685 – 1200.