Does a Power of Attorney give the right to change beneficiary information on existing IRA account? 42 Answers as of May 21, 2013

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.

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Paul Nidich, Attorney at law
Paul Nidich, Attorney at law | Paul Nidich
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.
Answer Applies to: Ohio
Replied: 10/13/2012
Edward L. Armstrong, P.C. | Edward L. Armstrong
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.
Answer Applies to: Missouri
Replied: 10/11/2012
Law Office of Pamela Braynon | Pamela Y. Braynon
If the power of attorney granted that right, she had the right to change designated beneficiaries. Usually, when signing the power of attorney the principal grants all rights that he/she has to the attorney in fact (power of attorney).
Answer Applies to: Florida
Replied: 10/10/2012
Musick & Cord | Jessi E. Musick
The answer to this question really depends on the specific powers given to her in the power of attorney document.
Answer Applies to: Missouri
Replied: 10/10/2012
Law Offices of Robert H. Glorch | Jeffrey R. Gottlieb
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.
Answer Applies to: Illinois
Replied: 10/10/2012
    Irsfeld, Irsfeld & Younger LLP | Norman H. Green
    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.
    Answer Applies to: California
    Replied: 10/9/2012
    The Center for Elder Law
    The Center for Elder Law | Don Rosenberg
    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.
    Answer Applies to: Michigan
    Replied: 10/9/2012
    Timiney Law Firm
    Timiney Law Firm | Leigh Anne Timiney
    It depends upon the language in the power of attorney document. It also depends upon when the document became valid, meaning when your brother's girlfriend legally was granted the right to act as his agent or attorney. I would suggest you contact an estate attorney and seek a consultation. You will need to bring a copy of the power of attorney document so the attorney can examine it. Good luck to you.
    Answer Applies to: Arizona
    Replied: 10/9/2012
    Hamblin Law Office | Sally Hamblin
    There are two issues there. The wording of the power of attorney and if she was the POA and changed the beneficiary to herself, she violated her fiduciary duty by self dealing. The probate court would have to rule on that petition. She is in the wrong if she used her power of attorney to benefit herself.
    Answer Applies to: Michigan
    Replied: 10/8/2012
    Blough Law Office | Janis L. Blough
    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.
    Answer Applies to: Michigan
    Replied: 10/8/2012
    Asset Protection and Elder Law Center
    Asset Protection and Elder Law Center | Shadi Alai-Shaffer
    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.
    Answer Applies to: California
    Replied: 10/8/2012
    Bruning & Associates, PC
    Bruning & Associates, PC | Kevin Bruning
    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.
    Answer Applies to: Illinois
    Replied: 10/8/2012
    Frederick & Frederick PLC | James P Frederick
    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.
    Answer Applies to: Michigan
    Replied: 10/8/2012
    Horn & Johnsen SC
    Horn & Johnsen SC | Dera L. Johnsen-Tracy
    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.
    Answer Applies to: Wisconsin
    Replied: 10/8/2012
    Richard M. Gee, a PC
    Richard M. Gee, a PC | Richard M. Gee
    It depends on what type of power of attorney it was. If it was a general power of attorney with no limitations, then technically she could change the beneficiary, although there may be legal issues surrounding that change, especially if it went against your brother's known wishes.
    Answer Applies to: Colorado
    Replied: 10/8/2012
    Law Office Of Victor Waid
    Law Office Of Victor Waid | Victor Waid
    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).
    Answer Applies to: California
    Replied: 10/8/2012
    James Oberholtzer, Attorney at Law
    James Oberholtzer, Attorney at Law | James Oberholtzer
    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.
    Answer Applies to: Oregon
    Replied: 10/8/2012
    James T. Weiner & Associates, P.C.
    James T. Weiner & Associates, P.C. | James T. Weiner
    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.
    Answer Applies to: Michigan
    Replied: 10/8/2012
    Leonard A. Kaanta, P.C. | Leonard A. Kaanta
    It depends on what powers were given in the power of attorney.
    Answer Applies to: Michigan
    Replied: 10/8/2012
    The Law Offices of Laurie E. Ohall, P.A.
    The Law Offices of Laurie E. Ohall, P.A. | Laurie E. Ohall
    That depends on the language in the durable power of attorney. If the IRA administrator allowed her to change the beneficiary, then it is very likely that the DPOA had specific language allowing her to make changes to beneficiary designations. You would need to look at the DPOA to be sure.
    Answer Applies to: Florida
    Replied: 10/8/2012
    The Schreiber Law Firm
    The Schreiber Law Firm | Jeffrey D. Schreiber
    First you have to look at what powers were granted in the Power Of Attorney to see if she was given that right. Second, someone with a Power Of Attorney does so in a fiduciary capacity and cannot act to their self interest. Just because she changed it (even if she had the power to do so), she must demonstrate she did that either because she was acting for HIS needs or she has evidence (other than conversations she may claim she had with him) that he directed her to make the change. They may want to consult an attorney over this.
    Answer Applies to: California
    Replied: 10/8/2012
    Powell Potter PLLC
    Powell Potter PLLC | Shawn Potter
    When a person gives another person power of attorney, the second person has the power to transact certain legal business on behalf of the authorizing person. If the power of attorney authorized her to change the IRA beneficiary, then she had the right to do so.
    Answer Applies to: Utah
    Replied: 10/8/2012
    Bullivant Houser Bailey PC
    Bullivant Houser Bailey PC | Darin Christensen
    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).
    Answer Applies to: Oregon
    Replied: 10/8/2012
    The Taylor Law Office L.L.C.
    The Taylor Law Office L.L.C. | Ian A. Taylor
    An agent under a power attorney can only do those things that are allowed by the document executed by the principal. The principal is the person that cannot make decisions and the agent is the person the principal gives power to to make decisions. In the case where financial decisions are going to be made, the document is called a general or financial power of attorney (GPOA). GPOA are designed to allow for the agent to make many different decisions. In most cases the GPOA allows the agent to make all the decisions that a principal could make if they were able to. If the agent acts without power to do so or the agent is acting for their own benefit, there may be an issue of what is called "self dealing" and the agent would owe the estate of the principal the money. If another party is acting on a representation by the agent that there is authority to act, the other party may owe the estate the money. However, if the GPOA is proper and everyone was acting within the power given, there may be no issue and the principal has conferred proper authority for the agent to act. I recommend seeking an estates attorney to look at the situation and determine whether your brother or the IRA company was duped by the girlfriend. The attorney can help determine whether the ira was acting correctly as well.
    Answer Applies to: South Carolina
    Replied: 10/8/2012
    Law Offices of Frances Headley | Frances Headley
    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.
    Answer Applies to: California
    Replied: 10/8/2012
    WARM SPRINGS LAW GROUP | Elliott D. Yug
    Contact an estate attorney. She has engaged in self-dealing and the change should be undone.
    Answer Applies to: Nevada
    Replied: 10/8/2012
    Neal M. Rimer, Esquire
    Neal M. Rimer, Esquire | Neal M. 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.
    Answer Applies to: California
    Replied: 10/8/2012
    Law Offices of Gerald A. Bagazinski
    Law Offices of Gerald A. Bagazinski | Gerald A. Bagazinski
    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.
    Answer Applies to: Michigan
    Replied: 10/8/2012
    Martinson & Beason, PC
    Martinson & Beason, PC | Douglas C Martinson II
    It would depend on what the Power of Attorney says. Under the new Act in Alabama, you can designate that authority to change it however, it must be specific. There is probably a good case against her and the Trustee for the IRA. But you must act quickly before she gets the money and spends it. You can get a Temporary Restraining Order (TRO) to stop the company from paying it out. Your parents should also call the company and let them know they are contesting this and not pay it out.
    Answer Applies to: Alabama
    Replied: 10/8/2012
    Whiteford, Taylor, & Preston | Edwin Fee
    It depends on the language of the document. A power of attorney certainly can authorize this power, but not all powers of attorney do.
    Answer Applies to: Maryland
    Replied: 10/8/2012
    O'Keefe Legal Services, L.L.C.
    O'Keefe Legal Services, L.L.C. | Sean P. O'Keefe
    In Maryland, an agent/attorney-in-fact may be able to change beneficiary designations on the principal's IRA. The answer to your question depends on whether the power was authorized in the Power of Attorney. You will need to see the document to learn whether the power was authorized (assuming the document is otherwise valid).
    Answer Applies to: Maryland
    Replied: 10/8/2012
    Mike Yeksavich | Mike Yeksavich
    It depends upon the wording of the power of attorney. Check with the power of attorney with the IRA issuer.
    Answer Applies to: Oklahoma
    Replied: 10/8/2012
    Sebby Law Office
    Sebby Law Office | Jayne Sebby
    The attorney-in-fact is expected to serve as the person's agent and act in the person's best interests.
    Answer Applies to: Nebraska
    Replied: 10/8/2012
    Law Offices of Terrell Monks
    Law Offices of Terrell Monks | Terrell Monks
    Generally, a Power of Attorney does not give the authority to make gifts to the one exercising the Power. Some POA documents expressly allow that authority, and some expressly disallow it. You should read the documment, if it is available, to determine whether gifting is covered. A Judge might be expected to look at such a case very closely and watch for abuse of the power. Time is important; if you intend to object, you should do so as quickly as possible, don't wait until the money is all spent.
    Answer Applies to: Oklahoma
    Replied: 10/8/2012
    THE BROOME LAW FIRM, LLC
    THE BROOME LAW FIRM, LLC | Barry D. Broome
    When a person who holds a power of attorney she cannot benefit without the permission of the person giving the power. I would suggest that you file an action in court challenging her taking the money. Barry Your financial plan is not complete until it is co-ordinated with your estate plan. Will your family be provided for when you are gone Without a Will, the court will decide.
    Answer Applies to: Georgia
    Replied: 10/8/2012
    The Curran Law Firm
    The Curran Law Firm | Maura Curran
    You need to look at the POA to see what powers are included in it. The POA can provide for such power.
    Answer Applies to: Florida
    Replied: 10/8/2012
    Victor Varga | Victor Varga
    No.
    Answer Applies to: Maryland
    Replied: 5/21/2013
    Neil J. Lehto, Esq.
    Neil J. Lehto, Esq. | Neil J. Lehto
    A general power of attorney probably was general or specific enough to permit her to do so before your brother died.
    Answer Applies to: Michigan
    Replied: 10/8/2012
    Marc J. Soss, Esq.
    Marc J. Soss, Esq. | Marc J. Soss
    The answer depends upon the authority granted to her under the Power of Attorney. It the document specifically said she could then she had that authority.
    Answer Applies to: Florida
    Replied: 10/8/2012
    Richard J. Keyes Attorney at Law | Richard J. Keyes
    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.
    Answer Applies to: Missouri
    Replied: 10/8/2012
    Law Offices of Charles R. Perry
    Law Offices of Charles R. Perry | Charles R. Perry
    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.
    Answer Applies to: California
    Replied: 10/8/2012
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