QUESTION
Does a Power of Attorney give the right to change beneficiary information on existing IRA account?
Asked on Oct 05th, 2012 on Estate Planning - California
More details to this question:
My brother was on life support (since passed). His girlfriend had power of attorney. We recently discovered that during that time, she changed the beneficiary of his IRA account from his parents to herself.
25 ANSWERS
Trust Attorney serving Cincinnati, OH
at
Paul A. Nidich Attorney at Law
Update Your Profile
As in many legal situations, the answer is "It depends." It depends upon the law of the state; it depends upon the provisions of the Power of Attorney. See an attorney to find out what the law is in your state and whether the Power of Attorney has "springing" powers, and if it allows the holder of the Power to transact business with his IRA. The answer is not very likely, and it looks like the Trustee of the IRA goofed-up.
Answered on Oct 13th, 2012 at 5:33 AM
Probate Attorney serving St. Louis, MO
at
Edward L. Armstrong, P.C.
Update Your Profile
It depends on whether the power of attorney actually gave her that right. If she exercised it after his death the change of beneficiary could be void.
Answered on Oct 11th, 2012 at 5:46 PM
Probate Attorney serving Palatine, IL
at
Law Offices of Robert H. Glorch
Update Your Profile
The answer is generally no, but the the specific language in the power of attorney might allow for it. Not all powers of attorney are the same. The POA should be reviewed to determine if the agent violated the terms.
Answered on Oct 10th, 2012 at 12:22 AM
Taxation Law Attorney serving Glendale, CA
at
Irsfeld, Irsfeld & Younger LLP
Update Your Profile
A general power of attorney ordinarily does not authorize the attorney-in-fact (holder of the power) to make gifts to herself or others. She ordinarily would not be authorized to change beneficiaries on a IRA account.
Answered on Oct 09th, 2012 at 6:00 PM
Trusts and Estates Attorney serving Troy, MI
at
Barron, Rosenberg, Mayoras & Mayoras, P.C.
Update Your Profile
Frankly, it depends what the durable power of attorney states. Additionally, there is a presumption of a confidential relationship which gives rise to undue influence. It sounds like in your situation the the girlfriend breached her fiduciary duty by self dealing on the IRA beneficiary. My advice if you want to pursue this, get your parent to an attorney ASAP.
Answered on Oct 09th, 2012 at 12:50 PM
Depends on the power of attorney was it "durable"? Does it expressly say it survives the disability of the principal?? Was you brother mentally competent at the time the POA was exercised?? Does its language cover that action? Generally, very broad language is used and the "attorney in fact" is empowered to do any act the principal (your brother) could have done himself.? What's more, they may have jointly decided that should be done under the circumstances, and she may have just been following his instructions or maybe not.
Answered on Oct 08th, 2012 at 5:55 PM
Depending on the specific language contained within your brother's Power of Attorney document, his agent may have had the legal authority to change the beneficiary designation for his IRA account. However, typically, an agent who is not a spouse may not act in a way that benefits herself directly unless the document contains special language authorizing such acts. Unfortunately, now that your brother is deceased, it would likely be an expensive and lengthy legal battle to prove that his girlfriend acted inappropriately and violated her fiduciary duty to act only for the benefit of your brother.
Answered on Oct 08th, 2012 at 5:54 PM
Shadi Ala'i AlaiShaffer
Not necessarily. IF your brother did not want this change to be done that is not proper. IF she did this without his knowledge that may be considered fraud. IF your brother had no intention for this change to occur or you can prove what she did was not proper or legal, you may be able to sue her or have a claim against her. You need to consult an attorney to get proper advice on your rights.
Answered on Oct 08th, 2012 at 5:54 PM
General Practice Attorney serving Crystal Lake, IL
at
Bruning & Associates, P.C.
Update Your Profile
It depends on the terms of the power of attorney. You would need to review the power of attorney document to see if it granted her those rights.
Answered on Oct 08th, 2012 at 5:54 PM
Trusts Attorney serving Sacramento, CA
at
Law Office of Victor Waid
Update Your Profile
You need to obtain probate litigation counsel for possible suit for breach of fiduciary of duty by the girlfriend of the power of attorney. The power of attorney died with the death of your brother. Look at that power very carefully as to its restrictions and powers granted to the holder of the power (girlfriend).
Answered on Oct 08th, 2012 at 5:53 PM
Business Planning Attorney serving Livonia, MI
at
Frederick & Frederick Attorneys at Law
Update Your Profile
This would almost certainly be inappropriate self-dealing and a breach of fiduciary duties. While acting under a POA form, the agent is required to act in the best interest of the principal, alone.
Answered on Oct 08th, 2012 at 5:53 PM
Generally, a POA does not grant the power to change the beneficiary designation on an IRA account. Moreover, general POA rules would not allow an agent under the POA to change it to themselves. Something may be very wrong here. I urge you to move quickly, notify the IRA custodian to hold the funds and hire an attorney to evaluate the situation.
Answered on Oct 08th, 2012 at 5:52 PM
Business Law Attorney serving Bingham Farms, MI
at
James T. Weiner, P.C.
Update Your Profile
Generally a power of attorney does not allow beneficiary changes.. because even general durable powers of attorney carries with it fudiciary obligations not to self deal I would contact an attorney immediately to investigate.
Answered on Oct 08th, 2012 at 5:52 PM
Leonard A. Kaanta
It depends on what powers were given in the power of attorney.
Answered on Oct 08th, 2012 at 5:51 PM
Tax Attorney serving Portland, OR
at
Bullivant Houser Bailey PC
Update Your Profile
The holder of a power of attorney owes a fiduciary duty to the grantor of the power of attorney. Using the power of attorney to benefit herself-except under express (and most likely confirmable by third parties) direction from the grantor-is a breach of that fiduciary duty and can likely be set aside (but probably will cost a fair amount of legal fees to do so).
Answered on Oct 08th, 2012 at 11:36 AM
Powers of attorney can be taylored to the needs of the principal and may contain all types powers. You should consult an estate planning attorney to review the POA in question and advise you.
Answered on Oct 08th, 2012 at 11:28 AM
Neal Michael Rimer
The holder of the power of attorney probably has the power to do the change in beneficiaries... but, making herself the beneficiary sounds like a breach of her fiduciary duty.To assure compliance with Treasury Department rules governing tax practice, we inform you that any advice (including in any attachment) (1) was not written and is not intended to be used, and cannot be used, for the purpose of avoiding any federal tax penalty that may be imposed on the taxpayer, and (2) may not be used in connection with promoting, marketing or recommending to another person any transaction or matter addressed herein. IMPORTANT: This e-mail message is not intended to be binding or relied upon and, without limitation on the foregoing, shall not create, waive or modify any right, obligation or liability, or be construed to contain or be an electronic signature, to constitute a notice, approval, waiver or election, or to form, modify, amend or terminate any contract. The information contained in this message is confidential and is intended only for the named addressee(s). This message may be protected by the attorney/client privilege. If the reader of this message is not an intended recipient (or the individual responsible for the delivery of this message to an intended recipient), please be advised that any re-use, dissemination, distribution or copying of this message is prohibited. If you have received this message in error, please reply to the sender that you have received the message in error and then delete it.
Answered on Oct 08th, 2012 at 11:27 AM
Business Law Attorney serving Livonia, MI
at
Gerald A. Bagazinski
Update Your Profile
It depends on what the Power of Attorney permits. The person using the poa generally cannot engage in self dealing. You should speakwith an attorney and consider setting up a formal conservatorship.
Answered on Oct 08th, 2012 at 11:26 AM
Alternative Dispute Resolution Attorney serving Baltimore, MD
at
Whiteford, Taylor & Preston L.L.P.
Update Your Profile
It depends on the language of the document. A power of attorney certainly can authorize this power, but not all powers of attorney do.
Answered on Oct 08th, 2012 at 11:23 AM
It depends upon the wording of the power of attorney. Check with the power of attorney with the IRA issuer.
Answered on Oct 08th, 2012 at 11:21 AM
The attorney-in-fact is expected to serve as the person's agent and act in the person's best interests.
Answered on Oct 08th, 2012 at 11:20 AM
You need to look at the POA to see what powers are included in it. The POA can provide for such power.
Answered on Oct 08th, 2012 at 11:15 AM
A general power of attorney probably was general or specific enough to permit her to do so before your brother died.
Answered on Oct 08th, 2012 at 11:14 AM
Litigation Attorney serving St. Louis, MO
at
Probate Law Center Richard J. Keyes, PC
Update Your Profile
You need to read the language of the Power of Attorney. Missouri statute RSMo. Section 404.710.6 states: 6. Any power of attorney, whether durable or not durable, and whether or not it grants general powers for all subjects and purposes or with respect to express subjects or purposes, shall be construed to grant power or authority to an attorney in fact to carry out any of the actions described in this subsection if the actions are expressly enumerated and authorized in the power of attorney. Any power of attorney may grant power of authority to an attorney in fact to carry out any of the following actions if the actions are expressly authorized in the power of attorney: (6) To designate or change the designation of beneficiaries to receive any property, benefit or contract right on the principal's death; Is she does not have the right under the power of attorney to change the beneficiary designations, she cannot do it.
Answered on Oct 08th, 2012 at 11:13 AM
Elder Law Attorney serving Hollister, CA
at
Charles R. Perry
Update Your Profile
The answer turns in part on the girlfriend's rights pursuant to the power of attorney. Regardless of the terms of that document, however, the transfer may constitute a breach of the fiduciary duty that your brother's girlfriend owed to to your brother. It is therefore necessary for your parents to meet with an attorney to determine what rights they may have, if any, against the former girlfriend and/or the company with whom the IRA was held. A relatively short consultation with an attorney should give your parents a much better idea of their rights, and what that can do.
Answered on Oct 08th, 2012 at 11:12 AM