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

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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

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 3 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.


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