Can a Power of Attorney move assets around while my father is still living?

UPDATED: Sep 30, 2022

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Can a Power of Attorney move assets around while my father is still living?

We believe assets were transferred by Power of Attorney to his account from my Dad’s assets. POA thinking verbal agreement was made and would stand up. How can we find this out?

Asked on May 3, 2017 under Estate Planning, South Dakota


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 5 years ago | Contributor

If someone has a power of attorney (POA) granting them the power to move or transfer assets (many POAs give this power, but they don't have to; you have to check the specific terms of the POA), he can do this IF he is doing it in the interest of his principal (the person who made or granted the POA): the law imposes on all attorneys-in-fact or agents (those are the terms for people given power by a POA) a "fiduciary duty" to act loyally to his principal and in the principal's best interests. If the agent had acted for his own benefit, that violated the fiduciary duty and he may have to repay what he took.
There is no built-in or automatic conflict between having power under a POA and being the executor--someone can be both.
If you believe the agent or attorney-in-fact acted in his own interests, not your father's, and took assets from your father, the estate, by the executor, could sue him for the return of the money; he'd have the chance, in the lawsuit, to show that his actions were justified.
If you believe that the executor is not acting in the estate's interest because as agent or attorney-in-fact he improperly took assets and is not, as executor, trying to recover them, you can bring a legal action in chancery court (a part or division of county court) seeking to make the executor "account" for his actions. If he is not acting in the estate's interests, such as by pursuing a legitimate claim to recover improperly taken assets, the court could remove and replace him as executor. If you wish to consider this option, you should consult in detail with a  probate attorney.

IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

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