| | | (2)__At the time of the determination, the principal lacks | | the capacity to give or revoke a power of attorney; or |
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| | | (3)__The termination of the power of attorney is in the best | | interest of the principal. |
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| | | If the power of attorney is revoked or terminated by the court, | | the petitioner may request that the principal or the court | | appoint a suitable person to serve as substitute agent under a | | new power of attorney if the principal is competent but unable to | | manage assets.__If the principal is incompetent and there is no | | suitable private person available and willing to assume | | responsibilities for asset management, the petition may seek a | | public conservator in Probate Court pursuant to Part 6. |
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| | | (g)__If a court determines that an agent has breached the | | agent's fiduciary duties, misappropriated a principal's resources | | or engaged in self-dealing, the court shall order prompt | | restitution to the principal and, when appropriate, to the long- | | term care facility from the agent's personal assets if necessary.__ | | In such a case, or if the agent fails without reasonable cause or | | justification to submit an accounting or report as required by | | the court under subsection (e), the court may order the agent to | | pay reasonable attorney's fees and costs to the petitioner.__The | | court may enter orders and take other action as appropriate to | | the circumstances. |
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| | | (h)__The duties of an agent under this section and any related | | cause of action survive the death of the principal.__The cause of | | action for breach of fiduciary duty or self-dealing is against | | the agent individually.__The long-term care facility may also | | file a claim for any uncompensated services against the | | principal's estate following the principal's death. |
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| | | Sec. 2. 22 MRSA §1826, sub-§2, ķI, as enacted by PL 1985, c. 291, §1, | | is amended to read: |
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| | I. No contract or agreement may contain a provision which | that provides for the payment of attorneys' | | or any other cost of collecting payments from the resident, | | except that attorney's fees and costs may be collected | | against any agent under a power of attorney who breaches the | | agent's fiduciary duty as set forth in Title 18-A, section | | 5-510. |
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| | | This bill establishes duties on the part of persons who hold | | durable powers of attorney or act as responsible parties for |
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