§ 3509 - Effect of subsequent involuntary guardianship on power of attorney
§ 3509. Effect of subsequent involuntary guardianship on power of attorney
(a) On motion filed in connection with a petition for appointment of an involuntary guardian or on petition of a guardian if one has been appointed, the probate court shall consider whether the authority of an agent designated pursuant to a previously executed power of attorney should continue undisturbed or be limited, suspended or terminated. The court may issue an order limiting, suspending or terminating the power of attorney only upon determining that to do so would be in the best interests of the ward.
(b) Upon a finding by a probate court that appointment of a guardian is warranted, pursuant to a petition for involuntary guardianship under subchapter 12 of chapter 111 of this title, if the principal has nominated a guardian in a previously executed power of attorney or other document, the probate court shall appoint as guardian the person so nominated unless the court determines that to do so would not be in the best interests of the ward.
(c) In determining the best interests of the ward, the court shall consider, at a minimum, the following factors:
(1) the preferences of the ward, including the identity of the agent and the scope of the agent's authority, as expressed in the power of attorney;
(2) whether the agent was appointed because he or she has special skills or expertise;
(3) whether a guardian is needed to perform duties for which authority was not given under the power of attorney;
(4) whether the exercise of concurrent powers is advisable when the scope of the agent's authority overlaps with the authority of the guardian;
(5) whether the agent and the guardian are able to perform their respective duties in a collaborative manner that does not compromise the best interests of the ward;
(6) whether the agent has violated the provisions of this subchapter or the terms of the power of attorney, breached his or her fiduciary duty, failed to perform duties under the power, or is unable or unwilling to perform duties under the power of attorney;
(7) whether the power of attorney was improperly executed;
(8) whether the principal executed the power of attorney as the result of duress, coercion, fraud or undue influence; or
(9) whether the principal lacked the capacity to create the power of attorney at the time of execution.
(d) If a guardian is appointed for the principal and the court determines that the previously executed power of attorney should remain in effect, the agent shall account to the guardian rather than the principal. (Added 2001, No. 135 (Adj. Sess.), § 2, eff. June 13, 2002.)