Hubbys aunt is in nursing home in Tennessee now and recently they changed POA. She has cancer and is going to pass away. She told us specifically she has CD's that we and our 3 children are listed as beneficiaries. Can the power of attorney now change the beneficiaries on these CDs. We have reason to believe this new POA might be thinking of cashing these. Is this legal. She is still living and this is her wish that we have these. We are talking a very generous amount of money. We are worried our children will not receive these.
General Practice Lawyer
It depends on what the POA says. If the CD is cashed and used for her benefit then that may be perfectly legal and acceptable even though there are beneficiaries listed.
Depending on what the power of attorney states, yes it is possible for the POA to do that. While your aunt is living, the funds are hers and can be cashed for her benefit. Also, the agent could change the beneficiary if the power is broad enough - not saying it would hold up, but they could still change it. If you are really concerned and aunt has capacity you should take it up with her, and she should provide written instructions on the use and management of her assets, and possibly change the agent, or limit the authority.
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I agree with Attorneys Carter and Shultz. While the attorney-in-fact may be acting properly, it is advisable to retain an attorney to confirm that everything is on the up-and-up. Because, if it's not, it may be too late to correct the problem if you wait until your husband's aunt passes away. Good luck to you.
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There is no easy way to answer your question. There are times when this would be permissible and other times when it would be construed as self-dealing and a breach of fiduciary duty. A great deal depends on the facts of your case. Your aunt may be able to control the disposition of these accounts if she still has capacity. If she does not have capacity, then you will need to try to monitor the situation as closely as you can.
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Family Law Attorney
I agree with prior advice, and, his question is hard to answer precisely without knowing how the power of attorney was written. What your aunt told you is one thing, and how the POA can carry out its duties are another.
Is this “helpful” or a “best” answer? Please mark it if it was, and I hope it was! Thank you! Nancy L. Ballast is an attorney in west Michigan, with a practice centered on family law, estate planning, and criminal law. www.nancyballastlaw.com