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POA Powers & Gifting Assets

Answered by: 
Ken Golliher

Question: 
We have a POA document that states the power of attorney can gift assets to others. Can the POA then name a POD on the account? The POA did not name himself.[Editor's note: The term "power of attorney" if often incorrectly used for the person to whom a power of attorney is granted. A power of attorney is either the document by which a principal grants authority or the authority itself. The correct term for the person to whom the authority is given is either "agent" or "attorney-in-fact."]
Answer: 

A review of both the language in the POA and any state statutes regarding POAs would be necessary to answer this question with confidence. In general, making a gift requires a contemporaneous transfer of ownership. For example, an attorney-in-fact empowered to make gifts could write a check today and, thus make a gift. Transfers of property at death are technically not gifts. In general, a power to make gifts now does not translate into a power to control the disposition of property at death; i.e., it does not mean he can name POD beneficiaries.

First published on BankersOnline.com 8/31/09

First published on 08/31/2009

Filed under: 
Operations
Filed under operations as: 
IT
Transfers

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