Does your power of attorney have all the muscle that it needs? A flabby, wimpy power of attorney can be dangerous because it may lull you into a false sense of security and leave you susceptible to getting smacked when you thought you were protected.
Or is your power of attorney a wolf in sheep’s clothing . . . waiting to pounce?
Often, one of the first documents I ask a new client to show me is a power of attorney. Then I perform what must seem like a strange ritual as I spend 30 seconds feverishly flipping through pages and scanning the document. At that point I either smile and nod or frown and shake my head. I have been looking for specific powers; for muscle.
In another post I discussed the basics of powers of attorney . . . what they are, the different types, and why they are so important. If you are the least bit uncertain, go back and review that post. Then come back here!
Is Your Fiduciary Faithful – Are His Bona Fides In Order?
Under state law, the person making the power of attorney or POA (the principal) and the person authorized to act (the agent or the attorney in fact – they mean the same thing) are said to be in a fiduciary relationship. The word “fiduciary” is based on the Latin “fide” or “faith.” As in semper fidelis or Fidelity Bank or bona fide.
Both statute and common law (common law is law that is generally agreed upon by all and sort of “just out there”) govern fiduciary conduct. A fiduciary is subject to a number of rules that are essentially legal applications of practical ideas of diligence, loyalty and fair dealing. In the context of POAs, however, those rules pose some important considerations.
Perhaps primary among those rules is the duty to conserve the principal’s assets for the benefit of the principal and to avoid commingling the principal’s assets with the agent’s assets . . . or, for that matter, to avoid self-dealing (keep your hands out of the cookie jar!).
Those rules are a good “default setting” because they protect the principal from carelessly giving too much power to an unsuitable agent. On the other hand, those rules prohibit gifting.
The Gift That Keeps On Giving
Gifting can be an important authority. As I tell my clients (and wrote in a recent post), “by ‘gifting’ we aren’t talking about birthdays and Christmas, we’re talking about the ability to freely transfer assets out of the name of the principal.” The ability to undertake a series of carefully planned “gifts” can be essential to a sound estate planning or asset preservation strategy.
A North Carolina statute specifically prohibits gifting under a power of attorney if the document is silent as to gifting. If you enjoy looking up such things, look at N.C.G.S. § 32C-2-201(a)(1)a.
In other words, a short power of attorney that says “I give my agent full power and authority to do anything and everything I could do for myself” does not authorize gifting if that topic is not specifically addressed.
And that, Dear Reader, is one of the first things I am looking for when I scan a power of attorney and I know the engagement is likely to involve various asset preservation strategies.
Gifting Powers . . . But Not Really
Another problem I often encounter is the North Carolina statutory short form power of attorney. That is a one or two page form. After a general paragraph that appoints a person “to act for me with respect to the following subjects as defined in the North Carolina Uniform Power of Attorney Act, Chapter 32C of the General Statutes” there follows a series of powers for the principal to initial in order to confer the power. The latest version has 13 different powers. Gifting is NOT among those powers.
There follows a section named “(OPTIONAL).” Eight specific powers have blanks that must be initialed to give your agent that power. No initial, no power. The first power is; “(____) Make a gift, subject to the limitations provided in G.S. 32C-2-217.” That statute says that if the gifting power has been initialed, gifts to any one individual may nevertheless NOT exceed the federal gift tax exclusion ($19,000 in 2025).
The next section of the form, again labelled “(OPTIONAL),” requires yet another initial if you want your agent to be able to make gifts to herself. The agent could be a spouse or a child, but if this is not initialed, NO GIFT to that person.
These are dangerous forms because they lull people into a false sense of security. When the family shows up in my conference room after Dad has entered a nursing home and they are concerned about Medicaid qualification and asset protection, most techniques we employ involve moving assets around. Think: Transferring a valuable piece of real property into the community spouse’s (the one not in the nursing home) name. With the (stupid) short form power, you might be completely hamstrung. I’ll describe this more below.
The principal, of course, is free to alter the common law or statutory law principles that apply to fiduciaries when she has her POA prepared. That is the key to a well-drafted and thoughtful power of attorney.
Problems With Gifting in a Power of Attorney
Many people are understandably nervous about granting gifting authority to an agent, but some limits on the agent can be put in place. For example, an agent may be given unlimited authority to make gifts to a select group of family members as long as the agent secures the written permission of certain other individuals.
No, no!
Many POAs (even those drafted by many attorneys who don’t practice in the elder law area) attempt to control an agent’s ability to gift by saying something like “my agent may make gifts in an amount not to exceed the federal annual gift tax exclusion.” As described above, be careful of this. That language was inserted as an easy way to put some sort of “reasonable” restriction on gifting ability. The federal annual gift tax exclusion currently is $19,000 to as many individuals as the person making gifts wishes to favor. In a POA, however, limiting the ability of an agent to make gifts to that amount can render the gifting authority nearly useless if there are substantial assets that need to be conveyed. For example, a $19,000 limit on gifts can make conveying a residence or large sum of money difficult, if not impossible.
Other Powers To Think Of
In addition to gifting powers, there are a number of other powers that may require specific attention in a well-drafted POA.
- Real Property
Real property (land and things on the land) law tends to be intricate and the law varies greatly from state to state. Often there are many surprises (many not pleasant) in the law that could restrict the ability of an agent to transfer the principal’s interests in real property.
With that in mind, specifically defining in a POA what an agent may or may not do with real property might be wise.
- Retirement Assets
Everything that could be said with respect to real property applies to retirement assets . . . except for the fact that most retirement plans (IRAs, 401(k) Plans, pensions) are controlled by federal law. A good POA will describe what an agent may or may not do with respect to retirement assets.
- Establishing and Dealing With Trusts
Most states have statutes that pertain to whether an agent may establish a trust on behalf of a principal . . . and most of those statutes require the POA to specifically describe what an agent may accomplish on behalf of the principal with respect to trusts if the agent is to have any authority at all.
- The authority should address both revocable trusts and irrevocable trusts.
Keep in mind that establishing a trust and using the principal’s assets might also be an indirect gift. For example, a trust may provide that the principal will receive income for life, and upon the death of the principal the trust will be distributed to other individuals. In that case, trust authorization language should be used together with gift authorization language.
As with gifting, the agent’s authority to establish and fund trusts can be tied to some external authority (perhaps the approval of another individual).
So . . .
Pull out your power of attorney. Is it up to the task of protecting you? Or do you have a wimp on your hands?
Questions? Leave a comment below and I’ll respond.
Updated February 2025.
