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.
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