Ask a Question” mailbag: “Can my son use my power of attorney to give away all my property?”
A Durable Power of Attorney gives your “Agent” the right to make financial decisions on your behalf during your lifetime. Each power of attorney can be unique. I need to examine your actual document to answer the question, can your son use that particular document to legally make gifts to himself, but here are some facts. A durable power of attorney can give your son the right to make unlimited gifts. In other words, your Power of Attorney could allow your son to legally leave you penniless.
Your Power of Attorney May Give Your Agent The Legal Authority To Leave you Penniless
This is why you should never sign a Power of Attorney without considering the gifting powers. My clients will usually decide on one of three options. (1) no gifting powers at all (2) limited gifting powers (3) or unlimited gifting powers.
Consult With An Experienced Estate Planning Attorney To Determine What Gifting Power Fits Your Situation
Your specific situation will dictate the best option. For example, if you give your Agent no power to make gifts, then if you are ever incapacitated your agent arguably cannot use your money to pay your child’s college tuition. In that case, a limited power to make gifts would be appropriate. You can also give your spouse an unlimited right to make gifts, but limit any subsequent Agent. No gifting power is best when you want your heirs to only get what funds exist at your death and for your Agent to use all of your funds for your care.
Reasoning through what gifting power best fits your situation is often skipped by estate planning lawyers. This can lead to avoidable litigation. Take the time to think through the power to make gifts. I suggest that you send me a scanned copy of your power of attorney and schedule a phone conference. I can then explain what power to make gifts your son holds.