Legal Question in Administrative Law in North Carolina

Please explain ''gifts to charities and to individuals other than my Agent''

How does one determine if an Agent is making a gift to himself or herself under a General and Durable Power of Attorney

Asked on 8/24/05, 8:26 pm

1 Answer from Attorneys

Kenneth Burgess Law Office of Kenneth L. Burges
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Re: Please explain ''gifts to charities and to individuals other than my Agent''

Every agent or power of attorney stands in a "fiduciary" relationship to the person who appointed him as their agent or power of attorney, and thus has a very high duty to act in the best interests of the individual. The person naming the agent/power of attorney; another person (usually a relative) acting on behalf of the original maker if that person is no longer able to make or communicate decisions for himself, and/or a court upon proper complaint can inquire into the performance of the agent/power of attorney and determine if he or she is acting consistent with the "best interests" standard or specific instructions given him by the maker of the power of attorney. If not, the agent/power of attorney can be removed by the Court. This inquiry can, and in your case should, include a requirement for an "accounting" by the agent/power of attorney and if that shows he or she has made improper payments to himself from the assets he is handling for the original maker, absent something specific in the document allowing to pay himself expenses or a "salary" of sorts, he would probably be deemd to be acting improperly. So the short answer is you should push the Court for an accounting to verify how funds are being spent and to whom they are being paid. This accounting should tell you what you want to know. Thanks, Ken Burgess.

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Answered on 8/25/05, 2:31 pm

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