Towson, MD asked in Estate Planning for Maryland

Q: Is it typical or acceptable for a POA to have the future right to change beneficiaries? To make herself a beneficiary?

A lawyer inserted special instructions into an online State POA form to allow the POA to change beneficiaries and to include the POA and her immediate family as allowable beneficiaries. Is that common or acceptable or reasonable to have that right for a POA? If so, what if that attorney who drafted the POA is listed as a successor POA? Is that still acceptable or appropriate or conflict-of-interest or ethical?

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2 Lawyer Answers
Nina Whitehurst
Nina Whitehurst
PREMIUM
Answered
  • Estate Planning Lawyer
  • Crossville, TN

A: That is neither common nor uncommon. It is something that the drafting attorney usually discusses with the principal/client before inserting it into the POA. There are good reasons for inserting such provisions in certain cases.

It would be unethical for the drafting attorney to exercise the POA in his or her favor UNLESS the drafting attorney is an heir at law of the principal.

Mark Oakley
Mark Oakley
Answered
  • Estate Planning Lawyer
  • Rockville, MD
  • Licensed in Maryland

A: I agree with Ms. Whitehurst. The general rule is that an agent acting under a POA is a fiduciary, and owes a duty to the principal to act in their best interests and on their behalf, and not engage in self-dealing. However, when the POA is also a family member, the lines can get blurred when they are also one of the heirs to the principal's estate and would naturally be expected to be among the beneficiaries of the principal named on various accounts. So long as the agent acts in a manner that is consistent with what the principal would have done for all his/her natural heirs equally, without favoritism or bias to the agent's benefit, then the action would likely be appropriate. A POA cannot modify, rewrite or amend the principal's last will and testament, but they may be able to replace named beneficiaries under other assets, like financial accounts and brokerage accounts, for reasons that may arise from time to time. For instance, if currently named beneficiaries pass away, and the default beneficiary would be the principal's estate, then there may be good reason to want to name direct beneficiaries consisting of the same heirs under the estate rather than put those funds through probate. Retirement accounts in particular would be subject to significant tax penalties if distributed to an account holder's estate rather than transferred directly to an individual. For market or investment reasons, financial accounts may be liquidated or transferred into new accounts that require the naming of beneficiaries. It is very difficult to anticipate what future circumstances and needs may arise, and the purpose of most POAs is to grant to the agent the same authority and powers the principal has to manage their assets as need and situations arise. However, blatant self-dealing that is not consistent with the principal's best interests or natural estate plan would be a basis to challenge the actions taken.

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