2016 Indiana Code TITLE 30. TRUSTS AND FIDUCIARIES ARTICLE 5. POWERS OF ATTORNEY CHAPTER 6. DUTIES OF THE ATTORNEY IN FACT
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IC 30-5-6
Chapter 6. Duties of the Attorney in Fact
IC 30-5-6-1
Exercise of powers not required
Sec. 1. The attorney in fact is not required to exercise the powers
granted under the power of attorney or to assume control of or
responsibility for any of the principal's property, care, or affairs,
regardless of the principal's physical or mental condition.
As added by P.L.149-1991, SEC.2.
IC 30-5-6-2
Due care to act for benefit of principal
Sec. 2. Except as otherwise stated in the power of attorney, the
attorney in fact shall use due care to act for the benefit of the
principal under the terms of the power of attorney.
As added by P.L.149-1991, SEC.2.
IC 30-5-6-3
Fiduciary capacity; exercise of all powers
Sec. 3. An attorney in fact shall exercise all powers granted under
the power of attorney in a fiduciary capacity.
As added by P.L.149-1991, SEC.2.
IC 30-5-6-4
Records of transactions; accounting
Sec. 4. (a) The attorney in fact shall keep complete records of all
transactions entered into by the attorney in fact on behalf of the
principal:
(1) for six (6) years after the date of the transaction; or
(2) until the records are delivered to the successor attorney in
fact;
whichever occurs first.
(b) Except as otherwise:
(1) stated in the power of attorney; or
(2) required by subsection (c);
the attorney in fact is not required to render an accounting.
(c) Except as provided in subsection (f), the attorney in fact shall
render a written accounting if an accounting is ordered by a court,
requested by the principal, a guardian appointed for the principal, a
child of the principal, or, upon the death of the principal, the personal
representative of the principal's estate, or an heir or legatee of the
principal.
(d) Except as provided in subsection (f), an attorney in fact shall
deliver an accounting requested under subsection (c) to:
(1) the principal;
(2) a guardian appointed for the principal;
(3) the personal representative of the principal's estate;
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(4) an heir of the principal after the death of the principal;
(5) a legatee of the principal after the death of the principal; or
(6) a child of the principal.
(e) Except as provided in subsection (f)(2), an attorney in fact
shall deliver an accounting ordered or requested under subsection (c)
to the court or the person requesting the accounting not later than
sixty (60) days after the date the attorney in fact receives the court
order or written request for an accounting.
(f) In the case of a principal who has died, the following apply:
(1) The court may order an accounting under subsection (c) at
any time.
(2) In the absence of a court ordered accounting, an attorney in
fact is not required to deliver an accounting to a person
described in subsection (d)(2) through (d)(6) unless the person
requests the accounting not later than nine (9) months after the
date of the principal's death.
(3) The delivery deadline set forth in subsection (e) applies to
a written request for an accounting that is timely submitted
under subdivision (2).
(g) Not more than one (1) accounting is required under this
section in each twelve (12) month period unless the court, in its
discretion, orders additional accountings.
(h) If an attorney in fact fails to deliver an accounting as required
under this section, the person requesting the accounting may initiate
an action in mandamus to compel the attorney in fact to render the
accounting. The court may award the attorney's fees and court costs
incurred under this subsection to the person requesting the
accounting if the court finds that the attorney in fact failed to render
an accounting as required under this section without just cause.
As added by P.L.149-1991, SEC.2. Amended by P.L.77-1998, SEC.1;
P.L.252-2001, SEC.35; P.L.165-2002, SEC.8; P.L.42-2012, SEC.1;
P.L.51-2014, SEC.29.
IC 30-5-6-4.1
Judicial review and settlement of an account; attorney in fact
Sec. 4.1. (a) An attorney in fact is entitled to judicial review and
settlement of an account of all transactions entered into by the
attorney in fact, whether or not:
(1) the attorney in fact's authority under the power of attorney
has been revoked; or
(2) a request for an accounting is made under section 4(c) of
this chapter.
(b) Judicial review and settlement of an account is initiated upon
the filing of a petition to settle and allow an account. The petition
must be filed with the court exercising probate jurisdiction for the
county in which the principal resides. Except as otherwise provided
by this section, the procedures under IC 30-4-5-14(b),
IC 30-4-5-14(c), IC 30-4-5-14(d), and IC 30-4-5-15 applicable to
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judicial settlement of a trustee's account govern:
(1) the filing of objections; and
(2) all proceedings;
on the petition.
(c) A petition to settle and allow an account must be served upon
all the following that are applicable:
(1) The principal.
(2) Any guardian appointed for the principal.
(3) Any successor attorney in fact.
(4) If the principal is deceased and a personal representative has
been appointed:
(A) the personal representative;
(B) any other fiduciary of the principal, if applicable; and
(C) any person beneficially interested in the decedent's
estate.
(5) If the principal is deceased and a personal representative has
not been appointed, the principal's heirs at law.
(6) If the principal is deceased and the principal's will is
probated without administration:
(A) the personal representative named in the probated will;
and
(B) all persons or entities beneficially interested in the
probated will.
(7) Any other person that the court directs.
(d) An attorney in fact is discharged from liability as to the
transactions disclosed in the accounting if:
(1) the court reviews and approves the accounting; and
(2) notice of the court's approval of the accounting is provided
to:
(A) the principal, if the principal is not deceased; or
(B) the principal's representatives, whether or not the
principal is deceased.
(e) In the absence of fraud, misrepresentation, inadequate
disclosure, or failure to provide proper notice related to the power of
attorney transactions, the discharge from liability under subsection
(d) is lawful and binding upon all interested persons:
(1) who would assert an interest on behalf of or through the
principal; and
(2) who are:
(A) born or unborn;
(B) notified or not notified; or
(C) represented or not represented.
(f) The filing fee for a petition to settle and allow an account filed
under this section is a legitimate expense of the principal or the
principal's estate.
As added by P.L.81-2015, SEC.21.
IC 30-5-6-4.2
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Claim against an attorney in fact; right to recover
Sec. 4.2. (a) This section applies to a claim against an attorney in
fact by:
(1) the principal;
(2) the principal's guardian;
(3) the principal's personal representative; or
(4) any person claiming through the principal following death.
(b) Except as provided in subsection (c), any claim against an
attorney in fact that has not previously been barred by adjudication
under section 4.1 of this chapter, by consent or by limitation, is
barred against any person described in subsection (a) who:
(1) receives an accounting of all transactions entered into by the
attorney in fact:
(A) personally, if the person is an adult; or
(B) through receipt by a parent or guardian, if the person is
a minor or person with a disability; and
(2) does not commence a proceeding under IC 30-5-9-11 not
later than two (2) years after receiving the accounting;
as to the matters disclosed in the accounting.
(c) The rights to recover from an attorney in fact for fraud,
misrepresentation, or inadequate disclosure related to a power of
attorney accounting are not barred under this section.
As added by P.L.81-2015, SEC.22.
IC 30-5-6-4.5
Attorney in fact's authority to hire persons; cost incurred to defend
actions of attorney in fact
Sec. 4.5. (a) An attorney in fact has the authority to employ
persons, including:
(1) attorneys;
(2) accountants;
(3) investment advisers; and
(4) agents;
to assist the attorney in fact in the performance of the attorney in
fact's fiduciary duties. Any reasonable costs incurred with regard to
services rendered for the benefit of the principal shall be paid from
the principal's asset holdings.
(b) Except as provided in subsection (c), if an accounting is
requested as set forth in section 4 of this chapter, or a petition to
settle and allow an account is filed under section 4.1 of this chapter,
costs incurred by the attorney in fact:
(1) to defend the actions of the attorney in fact on behalf of the
principal with regard to the preparation of the accounting; and
(2) to defend any other actions of the attorney in fact on behalf
of the principal;
shall be paid from the principal's asset holdings.
(c) If a court determines that an attorney in fact:
(1) breached the attorney in fact's fiduciary duty or obligation
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to the principal; or
(2) was engaged in self-dealing activities with the principal's
asset holdings;
the court may determine that the attorney in fact is responsible for
the payment of the costs incurred under subsection (b).
As added by P.L.165-2002, SEC.9. Amended by P.L.81-2015,
SEC.23.
IC 30-5-6-5
Notice to health care providers of power of attorney
Sec. 5. The attorney in fact shall ascertain whether the principal
has notified the principal's health care providers that a power of
attorney has been executed. If the principal has not notified the
principal's health care providers of the existence of a power of
attorney, the attorney in fact shall notify the health care providers of
the existence of the power of attorney.
As added by P.L.149-1991, SEC.2.
Indiana Code 2016
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