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|§4205 provides that a person may revocably delegate authority to perform “mechanical acts” to one or more persons qualified to exercise the authority delegated and remains responsible to the principal for the exercise or non-exercise of the delegated authority.
|Appointment of sub-agents under a Power of Attorney for a person must be expressly authorized in a Power of Attorney (see §751.031(b)(5)).
|Legislation does not prohibit the appointment of sub-agents under a Power of Attorney for a person and the topic of sub-agents is touched upon in the government form in positive terms, noting that in addition to the ‘statutory’ tasks there is a line in the government form for ‘ticking’ to indicate authority to appoint sub-agents and space to name sub-agents.
|Legislation does not prohibit the appointment of sub-agents under a Power of Attorney for a person and the topic of sub-agents is touched upon in the government form in positive terms, noting a paragraph must be struck out of the government form to overcome its operation that authorizes the appointment of sub-agents.
|§5602 legislation says a principal in respect of a Power of Attorney for a person may provide for “the delegation to an original or successor agent of the power to appoint his successor or successors”.
|The term “attorney-in-fact” used in §4205 to denote who may appoint a sub-agent is defined in §4014 to include a successor agent (accepting that a successor agent is known in California as an “alternate agent”).
|Appointment of sub-agents under a Power of Attorney for a person must be expressly authorized in a Power of Attorney (see §751.031(b)(5)). §751.031(b)(5) speaks of an “agent” delegating authority. The term “agent” is defined in §751.002 to include a successor agent.
|Appointment of sub-agents under a Power of Attorney for a person must be expressly authorized in a Power of Attorney (see §5602(b)). §5602(b) states “…the delegation of one or more powers by the agent to such person or persons as the agent may designate and on terms as the Power of Attorney may specify”. In §5602 it is said of successor agents that a principal may provide for the “appointment of one or more successor agents who shall serve in the order named in the Power of Attorney.” It follows that a successor agent may appoint a sub-agent (noting for completeness, that the term “agent” is defined in §5601 as "a person designated by a principal in a power of attorney to act on behalf of that principal."
In New York and Illinois:-
the topic of sub-agents is touched upon in the government form in positive terms and it seems reasonable to assume that if appointment of a sub-agent by an agent is permitted, this entitlement extends to a successor agent
The ability to appoint sub-agents is a good way to reduce risks associated with an agent or successor agent being unable to perform as an agent or successor agent, risks that might include them resigning.
Subject to considerations like for example, imposing class conditions requiring a sub-agent to perhaps be a certain age, have certain qualifications or similar, it may be prudent to include authority in a Power of Attorney permitting an agent or successor agent to appoint sub-agents.
Other considerations might include, for example, whether one of the following approaches is suitable:-
Considerations might include for example, how things work where:-
Excluding authority to appoint the same legal entity as a sub-agent tends to reduce the number and complexity of the issues at stake and may be preferable, as opposed to prohibiting the appointment of sub-agents.
§1.01 Agency Defined
“Agency is the fiduciary relationship that arises when one person (a “principal”) manifests asssent to another person (an “agent”) that the agent shall act on the principal’s behalf and subject to the principal’s control, and the agent manifests assent or otherwise consents so to act.”
"(1) A subagent is a person appointed by an agent to perform functions that the agent has consented to perform on behalf of the agent’s principal and for whose conduct the appointing agent is responsible to the principal. The relationships between a subagent and the appointing agent and between the subagent and appointing agent’s principal are relationships of agency as stated in §1.01.
(2) An agent may appoint a subagent only if the agent has actual or apparent authority to do so."
Restatement of the Law (Third) Agency, 2006 American Law Institute
In the Second Restatement of the Law Agency published in 1958 by the American Law Institute, a “sub-servant” was observed to be:
“a person appointed by a servant empowered to perform functions undertaken by the servant for the master and subject to the control as to his physical conduct both by the master and by the servant, but for whose conduct the servant agrees with the principal to be primarily responsible”.
The considerations above illustrate the fundamental position, that:-
"An attorney-in-fact may revocably delegate authority to perform mechanical acts to one or more persons qualified to exercise the authority delegated.
(b) The attorney-in-fact making a delegation remains responsible to the principal for the exercise or nonexercise of the delegated authority."
Notably in California, §4101 identifies non-variable provisions in the legislation and §4101 does not exclude from potential variation the effect of §4205 (which deals with appointment of sub-agents) seemingly leaving open the possibility that a principal may define liability for the actions of a sub-agent however they see fit, which seems correct given the use of the term “default rule” in the extract below.
More Insight About California
The following extract from the 1994 California Law Revision Commission Report which led to enactment of Division 4.5 of the Probate Code is informative, speaking of law as it was prior to the amendments and proposed changes (footnotes are in brackets):
"Existing law is unclear on the extent to which an… [agent] may delegate authority under a power of attorney for property. The Power of Attorney statutes are silent on the matter, but the general agency statutes permit delegation (1) if the act is “purely mechanical,” (2) if the act cannot be performed by the… [agent] but can be by the subagent, (3) if it is the “usage of the place” to delegate the authority, or (4) if the delegation is authorized by the principal. (Civ. Code § 2349) Under these general rules, a subagent is not responsible to the principal, nor is the original… [agent] responsible to third persons for the acts of a “lawfully appointed” subagent. (Civ. Code §§ 2022, 2350, 2351; see also Civ. Code § 2400.5, proxy given by agent to exercise stock voting rights). The language of these sections seems more appropriate to business agencies than to the type of Power of Attorney prepared by an individual to manage private affairs.
As the default rule, the proposed law permits delegation of mechanical acts. However, unlike the general agency rule, the original… [agent] remains responsible to the principal for the exercise of the authority delegated."
For a person in Florida creating a Power of Attorney for a person not excluded from the ambit of the legislation, who might contemplate authorizing the appointment of sub-agents but for §709.2114(b), there may be a partial solution achieved by:-
As a matter of principle, there is nothing to prevent the principal in respect of a Power of Attorney for a commercial entity or a Power of Attorney for a person for a purpose excluded from the ambit of the legislation from including authority to appoint sub-agents.