The Rev. Raymond C. O’Brien, Professor Emeritus of Law, recently published an article in the Quinnipiac Probate Law Journal (36 Quinnipiac Law J. 411-450 (2023)). Fr. O’Brien’s research, entitled “Creating a Trust Through Delegation,” explores the Uniform Power of Attorney Act in 2006 (UPOAA), its role, and its impact in ensuring that vulnerable adults receive protection from financial exploitation. It additionally argues that certain provisions in powers of attorneys statutes, specifically the UPOAA, violate public policy.

Below is the first paragraph of the abstract.

Abstract

Aging in America has precipitated increasing use of planning for incapacity devices, which include forms creating powers of attorneys (“POAs”). Simple forms may be found online, or they may become part of a sophisticated estate planning portfolio drafted by professionals. Resultingly, to support portability, enforceability, and protection against financial exploitation of vulnerable adults, the National Conference of Commissioners on Uniform State Laws approved the Uniform Power of Attorney Act in 2006 (“UPOAA”), which has been adopted by more than half of United States jurisdictions. One of the Act’s provisions requires an express grant of authority contained within the principal’s POA before an agent designated by the principal may create, amend, revoke, or terminate a trust. As a result, a general grant of authority to an agent is insufficient to permit an agent to create an inter vivos trust, revocable or irrevocable. This component is counterproductive because it lessens the agent’s fiduciary effectiveness, particularly given the flexibility and management advantages that trusts bring to modern estate planning.