Understanding Duties and Conflicts of Interest--A Guide for the Honorable Agent

This article examines the importance of understanding agent duties and conflicts of interest, both for drafting a power of attorney that meets a principal's objectives and for providing guidance to the agent who will act under its authority. Professor Whitton suggests that current custom and practice with respect to powers of attorney often overlooks the need to adjust agent duties to accommodate the principal's expectations, thus resulting in inadvertent conflicts between the duty to do what the principal expects and default duties of loyalty. The article offers practical guidelines for identifying and reconciling these conflicts, as well as best practices to improve the agent's understanding of the authority granted in the power of attorney, the principal's expectations for exercise of that authority, and the duties an agent must meet when carrying out the principal's expectations.