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May an attorney-in-fact be paid for any services rendered to principal?
Question
As trustee, we currently have a situation in which an attorney-in-fact has filed a claim for services which she rendered over the past eight years. The agent is a long-time friend of the elderly principal/grantor. There is no doubt that the agent provided valuable services to the principal over the years. However, there was never any indication from the agent (or the principal) that these services were provided for any other reason than concern for the principal. The power of attorney is silent on the subject of compensation for the agent.
Does the agreement represent a contract for services? Is the agent entitled to reasonable payment for past services? Is there a statute of limitations for such a claim?
Answer
An attorney-in-fact (agent) may receive reasonable compensation for the attorney-in-fact's services if provided for in the durable power of attorney. See MCL 700.5501(3)(h); provided, however, this subsection is inapplicable to a durable power of attorney executed before October 1, 2012.
In the situation in which the durable power of attorney is silent concerning compensation, the EPIC does not contain a provision for reasonable compensation of an attorney-in-fact as it does for other types of fiduciaries.
The panel does not have specific facts concerning the nature of the attorney-in-fact’s claim and therefore cannot opine regarding whether the attorney-in-fact may have a basis for compensation for services performed under legal theories other than the fiduciary relationship (such as contract implied in fact for services rendered to the decedent).
The applicable statute of limitations would depend on the nature of the claim. See MCL 600.5805 and subsequent sections of the Revised Judicature Act. The Trustee must also be cognizant of the creditor notice requirements of MCL 700.7608 and the relevant procedures and time frames set forth in Article VII, Part 6 of EPIC.
While perhaps only tangentially relevant depending on the nature of the claim, the questioner may want to read In re Nowak Trust (Reader v LaFave), No 298212, 2012 Mich App LEXIS 2446 (Dec 6, 2012) which is pending on application to the Michigan Supreme Court.