Call To See How I Can Help You 781-433-8665


Does my mom’s power of attorney allow me to make gifts?

Posted by Sasha Golden | Feb 27, 2011 | 0 Comments

Anyone appointed under a durable power of attorney (DPOA) to act as someone's attorney-in-fact (AIF) needs to read the document — carefully. You might think that this is obvious, but it doesn't happen nearly as much as it should. Failure to read and understand the document is not a good excuse if you, as the AIF, should get sued by some very unhappy relative or Elder Protective Services complains that your failure to follow instructions hurt your mom.

One of the biggest traps for the AIF is power—or lack thereof—to make gifts, either to others or to the AIF herself. As a matter of law, if the DPOA does not expressly say you can make a gift, you can't make it. If it puts limits on who can receive a gift or on the amount to be given away, then those limits must be honored. If the DPOA says you can only make gifts of equal amounts to all of the children, then you can't favor one child over another. And if it doesn't say that you can make a gift to yourself from your mom's funds, then doing so is unlawful self-dealing.

So, what happens if you ignore the instructions in the DPOA? If you're lucky, your mom (if competent) will fire you. Or you can get sued. A judge can force you to give up your position. And you could be ordered to repay your mom the money you wrongly gave away from your own funds.

If you are the AIF, you should not hesitate to consult with an estate planning or elder law attorney to review what the DPOA authorizes you to do.

About the Author

Sasha Golden

Alexandra “Sasha” Golden received her undergraduate and law degrees from Boston College, and has been practicing law in Massachusetts since 1994. Attorney Golden is a long-standing member of the Massachusetts chapter of the National Academy of Elder Law Attorneys (NAELA) and of the Probate and So...


There are no comments for this post. Be the first and Add your Comment below.

Leave a Comment

Contact Golden Law Center Today

Golden Law Center is committed to answering your questions about elder law and estate planning issues in Massachusettes.

I'll gladly discuss your case with you at your convenience. Contact us today to schedule an appointment.

Golden Law Center
(781) 465-6078 (fax)
Mon: 09:00am - 05:00pm
Tue: 09:00am - 05:00pm
Wed: 09:00am - 05:00pm
Thu: 09:00am - 05:00pm
Fri: 09:00am - 02:00pm

Disclaimer: The materials appearing on this website are provided for informational use only and are in no way intended to constitute legal advice or the opinions of this law firm or any of its attorneys. You should never hire an attorney without first meeting with the lawyer, reviewing her qualifications, and carefully reading the fee agreement. The use of the material on this website does not create an attorney-client relationship, and you should not rely upon the information provided here without seeking the advice of an attorney. We also cannot guarantee that the materials appearing on this website are not guaranteed to be correct, complete, or up-to-date since the law is always changing.

This website must be labeled “advertising” according to the rules of professional responsibility established by the Massachusetts Supreme Judicial Court. This website may not meet the applicable laws or ethical rules in other states. Golden Law Center does not wish to represent persons living in those states who seek our representation as a result of viewing this website.

Links that may appear on this site are intended to provide additional sources of information and are not to be construed as being endorsements by the Golden Law Center or indications of affiliation. We do not imply that we are legally authorized to use any trade name, registered trademark, symbol, logo, or seal that may be reflected in any of these links.