[WSBAPT] Power of Attorney / LLC Questions

[Mark Anderson]

Dear All:

Principal is the sole member of a limited liability company.  The LLC owns a piece of real property.  Principal executes a document entitled "Durable Power of Attorney for Asset Management," effective upon execution.  DPOA is silent as to power to act in any capacity on behalf of the LLC.  After Principal is declared incompetent to manage Principal's own financial affairs, Agent sells the real property owned by the LLC, signing a warranty deed as both "Managing Member" of the LLC and as "AIF [Principal's name], DBA [name of the LLC]."

This scenario raises several questions for me:

  *   If the express DPOA is silent on the matter, does a power of attorney authorize an Agent to sell real property owned by a limited liability company when the Principal is the sole member of the LLC?
  *   Is it a breach of the Agent's fiduciary duty for the Agent to have signed as Managing Member of the LLC when, in fact, the Agent was not indeed the Managing Member?  (To me, this looks like a misrepresentation as to authority to convey title.)
  *   Is it a breach of the Agent's fiduciary duty for the Agent to represent the Principal as being a DBA of a limited liability company?  (This clearly exposes the LLC to liability under the concept of alter ego.)

I haven't found anything on point... At least yet.

Any thoughts on this fact pattern?

Thanks.

Mark B. Anderson
ANDERSON LAW FIRM PLLC
821 Dock St  Ste 209  PMB 4-12
Tacoma, Washington 98402
+1 253-327-1750
+1 253-327-1751 (fax)
marka at mbaesq.com<mailto:marka at mbaesq.com>
www.mbaesq.com<http://www.mbaesq.com/>
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