A Florida intermediate appellate court held that co-agents under a power of attorney are subject to the same fiduciary principles that apply to co-trustees and that a co-agent under a power of attorney had both the right and duty to seek an accounting from the co-agent.
In Rosenkrantz, a mother appointed her daughter and her son as co-agents under a Florida durable power of attorney. The mother and son lived in Florida, while the daughter lived in New York. The daughter alleged that her brother refused to account for their mother's assets and objected to her efforts to obtain information directly from financial institutions. She attempted to issue subpoenas on her mother's bank to obtain account information but could not issue the subpoenas or obtain this information without her brother's concurrence as co-agent. The daughter then brought a declaratory judgment action in a Florida court asking for a declaration of her rights as co-agent and an order for an accounting from her brother. The trial court dismissed her complaint with prejudice.
The appellate court, however, reversed the trial court's decision, noting that under the applicable Florida statute, co-fiduciaries under a durable power of attorney are liable "for failure either to participate in the administration of assets subject to the power or for failure to attempt to prevent a breach of fiduciary obligations thereunder." The court held that co-fiduciaries must be guided by the same fiduciary principles as trustees and, therefore, the daughter had both a right and a duty to seek an accounting from her co-agent.