Misfeasance, Nonfeasance, and the Self-Interested Attorney

How extensive should the liability of an attorney acting under a "continuing power of attorney" be? Where the donor is capable, the question is not unduly complicated. However, where the donor is incapable and the attorney has an interest in the donor's estate, the question is more difficult. Attorneys acting on behalf of incapable donors should conduct themselves according to the highest standards of probity and fidelity in addition to performing their duties competently. Unexcused breach of the duty of care should result in compensation. For breach of fiduciary duty, restitution should be the norm rather than compensation. In the hardest cases, it is argued that an attorney with an interest in the donor's estate should not be allowed to profit from his or her wrong indirectly through his or her inheritance of the misappropriated assets.