A power of attorney, or POA, is a legal document giving another person the legal authority to make financial and legal decisions on your behalf. The person giving the power is called the principal and the person named in a POA to act for the principal is known as an agent or attorney-in-fact. You should only name someone to be your POA, if you trust them implicitly and believe they will always manage your affairs with your best interest in mind, according to the recent article titled “Can A Power Of Attorney Transfer Money To Themselves?” from Washington Independent.
There are different types of power of attorney and ethical and legal considerations surrounding the transfer of money. The two main types of POA are special POA and durable POA. A special POA gives the agent the authority to handle a specific financial or legal matter on your behalf, and the power ends when the task is completed. A good example is giving someone a special POA to sell a property while you are out of town. A durable POA gives someone the authority to act on your behalf for financial and legal matters. It is effective immediately and remains in effect if you become incapacitated and continues until your death or until it is revoked. Bear in mind that there are special rules in Florida if guardianship is initiated.
The powers given to an agent vary widely depending on the state laws governing the document, and also vary depending on the specific document. In general, an agent can use the Power of Attorney to handle a wide range of financial matters, including paying bills, managing investments, buying and selling real property, and signing legal documents. In Florida, there are certain powers (superpowers) where the principal must place his initial next to that power in the document for those powers to be valid.
Using non-state-specific blank forms downloaded from the web leads almost always leads to complicated (read: costly and time-consuming) problems for an agent. The specific powers granted to the agent need to be spelled out in the document. For example, you may wish for your POA to pay household bills, but not to sell the house.
There are also ethical considerations. While the Power of Attorney gives the agent the authority to transfer money on your behalf, they are fiduciaries and are held to a higher standard of ethics. They must act in your best interest at all times.
Transferring money from your account to the agent’s account for their benefit would be a clear violation and could result in legal consequences, including criminal charges. The transfer could be challenged in court and the agent could be held accountable for any damages.
If you are concerned about a person abusing this role, there are steps to take to minimize the risk.
- Chose a trustworthy and reliable person to serve as your agent.
- Limit the powers granted by having a customized Power of Attorney drafted by an experienced estate planning attorney. The document could specify that the agent is not permitted to transfer money to themselves or use your funds for their personal benefit.
- Monitoring the action of the agent. If you are incapacitated, name a person to monitor the agent and provide them with contact information for your estate planning attorney if there are any questions.
Reference: Washington Independent (Feb. 7, 2023) “Can A Power Of Attorney Transfer Money To Themselves?”