Would equity deem an enforceable irrevocable power of attorney (IPA) to be a trust rather than an agency?

Charles E. Rounds, Jr.
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At law and in equity the classic agency is terminable at the will of either the principal or the agent, and in any event upon the death or mental incapacity of either. The durable power of attorney is one statutory partial exception. In a common law jurisdiction equity would (or should) deem an irrevocable power of attorney to be a trust in substance, notwithstanding the agency format, absent special facts, particularly if obligations are to survive post-mortem. As a consequence, legal title would have passed by operation of law to the “agent,” i.e. to the trustee, at the time the parties had entered into the “relationship.” In a common law jurisdiction the consequence of there being a trust relationship is that legal title is in the trustee by operation of law. While desirable for evidentiary and other purposes, a formal conveyance or re-registration is generally not a sine qua non, at least when it comes to tangible and intangible personal property. See appendices A & B below, which are relevant excerpts from §§2.1 & 2.1.1of Loring and Rounds: A Trustee’s Handbook (2017). A trust that is masquerading as an irrevocable power of attorney is no exception. It is hard to see how a ministerial agent could justifiably be deemed in equity to be an express trustee masquerading as an agent. The critical element of discretion is absent. Conversely, an agency coupled with an interest is not a true agency; nor, absent special facts, should equity deem the relationship to be a trust in disguise. See Seavey, Law of Agency 21 (1964) (“Holders of powers for their own benefit… are not agents…The powers they hold may be termed proprietary, the language and forms of agency being used to create them and hence have to some extent been included in treatises on agency. ..They are frequently described as ‘powers coupled with an interest.’”) Finally, at least under classic agency doctrine, an “irrevocable” agency is either something other than a true agency or is revocable notwithstanding the “irrevocable” label. “The principal can revoke the authority of an agent at any time, irrespective of an agreement not to do so.” Id. at 87.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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