N.C. Gen. Stat. § 32C-1-117
Agent's liability
Redline — June 1, 2021 → current.View current text →
Current — April 1, 2022
As of June 1, 2021
(1) A violation by an agent of this Chapter is a breach of fiduciary duty.
(1) A violation by an agent of this Chapter is a breach of fiduciary duty.
(2) To remedy a breach of fiduciary duty that has occurred or may occur involving a power of attorney, the court may do the following: Enjoin an agent from committing a breach of fiduciary duty.
(2) To remedy a breach of fiduciary duty that has occurred or may occur involving a power of attorney, the court may do the following: Enjoin an agent from committing a breach of fiduciary duty.
(3) Compel an agent to redress a breach of fiduciary duty by paying money, restoring property, or other means.
(3) Compel an agent to redress a breach of fiduciary duty by paying money, restoring property, or other means.
(4) Order an agent to account.
(4) Order an agent to account.
(5) Appoint a special fiduciary to take possession of the property subject to the power of attorney and administer that property.
(5) Appoint a special fiduciary to take possession of the property subject to the power of attorney and administer that property.
(6) Suspend an agent.
(6) Suspend an agent.
(7) Remove an agent.
(7) Remove an agent.
(8) Reduce or deny compensation to or reimbursement of an agent.
(8) Reduce or deny compensation to or reimbursement of an agent.
(9) Subject to G.S. 32C-1-119 and other laws governing the rights of third persons dealing in good faith with an agent, void an act of an agent, impose a lien or a constructive trust on property subject to the power of attorney, or trace property wrongfully disposed by an agent and recover the property or its proceeds.
(9) Subject to G.S. 32C-1-119 and other laws governing the rights of third persons dealing in good faith with an agent, void an act of an agent, impose a lien or a constructive trust on property subject to the power of attorney, or trace property wrongfully disposed by an agent and recover the property or its proceeds.
(10) Order any other appropriate relief.
(10) Order any other appropriate relief.
(11) The court may, for good cause shown, relieve an agent from liability for any breach of fiduciary duty under a power of attorney, or wholly or partly excuse an agent who has acted honestly and reasonably from liability for a breach of fiduciary duty under a power of attorney.
(11) The court may, for good cause shown, relieve an agent from liability for any breach of fiduciary duty under a power of attorney, or wholly or partly excuse an agent who has acted honestly and reasonably from liability for a breach of fiduciary duty under a power of attorney.
(12) An agent who commits a breach of fiduciary duty under a power of attorney is liable for the following: The amount required to restore the value of the property subject to the power of attorney and distributions from that property to what they would have been had the breach not occurred; and
(12) An agent who commits a breach of fiduciary duty under a power of attorney is liable for the following: The amount required to restore the value of the property subject to the power of attorney and distributions from that property to what they would have been had the breach not occurred; and
(13) The profit the agent made by reason of the breach.
(13) The profit the agent made by reason of the breach.
(14) Except as otherwise provided in this subsection, if more than one agent is liable for a breach of fiduciary duty under a power of attorney, an agent is entitled to contribution from the other agent or agents. An agent is not entitled to contribution if the agent was substantially more at fault than another agent or if the agent committed the breach of fiduciary duty in bad faith or with reckless indifference to the purposes of the power of attorney or the best interests of the principal. An agent who received a benefit from the breach of fiduciary duty is not entitled to contribution from another agent to the extent of the benefit received.
(14) Except as otherwise provided in this subsection, if more than one agent is liable for a breach of fiduciary duty under a power of attorney, an agent is entitled to contribution from the other agent or agents. An agent is not entitled to contribution if the agent was substantially more at fault than another agent or if the agent committed the breach of fiduciary duty in bad faith or with reckless indifference to the purposes of the power of attorney or the best interests of the principal. An agent who received a benefit from the breach of fiduciary duty is not entitled to contribution from another agent to the extent of the benefit received.
(15) An agent is liable for any profit made by the agent arising from dealings with property subject to the power of attorney, even absent a breach of fiduciary duty. Nothing in this section limits an agent's right to compensation under G.S. 32C-1-112.
(15) An agent is liable for any profit made by the agent arising from dealings with property subject to the power of attorney, even absent a breach of fiduciary duty. Nothing in this section limits an agent’s right to compensation under G.S. 32C-1-112.
(16) Absent a breach of fiduciary duty under a power of attorney, an agent is not liable for a loss or depreciation in the value of property subject to the power of attorney or for not having made a profit.
(16) Absent a breach of fiduciary duty under a power of attorney, an agent is not liable for a loss or depreciation in the value of property subject to the power of attorney or for not having made a profit.
(17) In a judicial proceeding involving a claim for breach of fiduciary duty under a power of attorney, the court may award costs and expenses, including reasonable attorneys' fees, as provided in G.S. 6-21(2).
(17) In a judicial proceeding involving a claim for breach of fiduciary duty under a power of attorney, the court may award costs and expenses, including reasonable attorneys’ fees, as provided in G.S. 6-21(2).
History
(2017-153, s. 1.)
NORTH CAROLINA COMMENT
This section replaces the provisions of Section 117 of the Uniform Power of Attorney Act, and has no counterpart in prior North Carolina power of attorney law.
Subsections (a) through (c) are similar to the remedies for breach of trust provided for under G.S. 36C-10-1001 with modifications for applicability to an agent for breach of fiduciary duty.
Subsections (d) and (e) of this Section 117 are similar to the damages for breach of trust provided for under G.S. 36C-10-1002(a) and G.S. 36C-10-1002(b), respectively with modifications for applicability to an agent who commits a breach of fiduciary duties under a power of attorney. Also, the terms "greater of" were omitted from subsection (d) and the "or" was replaced with "and" for subdivisions (d)(1) and (2).
Subsections (f) and (g) of this section are similar to the liability in the absence of breach provided under G.S. 36C-10-1003(a) and G.S. 36C-10-1003(b), respectively, with modifications for applicability to an agent under a power of attorney.
Subsection (h) of this section is similar to G.S. 36C-10-1004 with modifications for applicability to a claim for breach of fiduciary duty under a power of attorney.
Official source: North Carolina General Assembly. Reproduced from public-domain North Carolina statutes; confirm against the official source for the current text. Not legal advice.