§ 3510 - Action for accounting; declaratory relief; termination of power of attorney
§ 3510. Action for accounting; declaratory relief; termination of power of attorney
(a) A principal may file a petition in superior court to compel the agent to submit an accounting or report his or her acts as agent to the principal or for the purposes listed in subdivisions (c)(1)-(3) of this section.
(b) The commissioner of disabilities, aging, and independent living, or designee, acting pursuant to chapter 69 of Title 33, may also file a petition in superior court for the purposes listed in subsection (c) of this section. If, upon motion of the principal, the court determines that the principal is capable of expressing his or her opinion and does not wish the commissioner, or designee, to pursue the petition, the court shall dismiss the petition unless the court finds the opinion is the product of duress or undue influence.
(c) A petition may be filed for the following purposes:
(1) To determine whether a power of attorney is in effect or has been terminated or revoked.
(2) To determine the legality of acts, proposed acts, or omissions of an agent.
(3) To enjoin the agent from taking unauthorized or illegal acts or to compel the agent to act, if the terms of the power of attorney provide that the agent has a duty to act, pursuant to section 3506 of this title.
(4) To compel the agent to submit an accounting or to report his or her acts as agent to the commissioner of disabilities, aging, and independent living, acting pursuant to subsection (b) of this section, upon a showing that there is good cause to believe:
(A) the agent has violated the provisions of this chapter or the terms of the power of attorney, has breached his or her fiduciary duty to the principal, or is unfit to perform his or her duties under the power of attorney; and
(B) that, at the time of the petition, the principal lacked the capacity to request an accounting.
(5) To declare that the power of attorney shall be terminated upon determination by the court that the power of attorney was improperly executed, the principal executed the power of attorney as the result of duress, fraud or undue influence, the principal lacked the capacity to create the power of attorney at the time of execution, the agent has violated the provisions of this chapter or the terms of the power of attorney, has breached his or her fiduciary duty to the principal, or is unfit to perform his or her duties under the power of attorney.
(d)(1) In a proceeding under this section, commenced by the filing of a petition by a principal or the principal's legal representative, the court may order an agent to pay reasonable attorney's fees to the principal if the court determines that the agent has clearly violated the provisions of this chapter or the terms of the power of attorney, his or her fiduciary duties under the power of attorney, or has failed without any reasonable cause or justification to submit accountings or reports after written request.
(2) In a proceeding under this section, commenced by the filing of a petition by the commissioner of disabilities, aging, and independent living, or designee, the court may order the commissioner to pay reasonable attorney's fees to the agent if the court finds that the petition was filed without a substantial basis in law or fact.
(e) The principal and the agent shall be parties to any petition brought under this section. (Added 2001, No. 135 (Adj. Sess.), § 2, eff. June 13, 2002; amended 2005, No. 174 (Adj. Sess.), § 26.)