Why People Allow Their Power of Attorney To Gift Everything Away

January 11, 2024

"Imagine that your family gave all of your stuff away, and you're okay with it." This scenario might sound unusual at first glance, but it represents a critical aspect of estate and emergency planning through the use of a Power of Attorney (POA). In the realm of legal planning, the ability to grant someone the authority to dispose of your assets isn't just about losing control; it's about strategic planning for unforeseen circumstances. The Maryland case of King vs. Bankerd serves as a pivotal example of how and why such authority can be crucial.

A Power of Attorney is a legal document that allows you to appoint someone else to manage your affairs if you are unable to do so. However, the extent of this authority can vary significantly. The decision to include the power to dispose of assets in a POA is a significant one, requiring careful consideration and understanding of the potential implications.

Why would one want to empower their agent with such extensive authority? Key reasons include the need for flexibility in emergency situations, the potential for tax benefits, and the ability to engage in proactive estate planning. However, this power also comes with risks, underscoring the importance of choosing a trustworthy agent and clearly defining the scope of their authority.

King vs. Bankerd - A Case Study

n the case of King vs. Bankerd, Howard Bankerd, after a separation from his wife, granted a POA to Arthur King, allowing him to “convey, grant, bargain and/or sell” Bankerd’s Maryland house. Bankerd later moved out, leaving the house to his estranged wife. Years after, without Bankerd’s direct consent, King used the POA to transfer Bankerd’s interest in the property to his wife, who subsequently sold the house, with Bankerd receiving no consideration from either transaction. Bankerd sued King, alleging breaches of trust and fiduciary duty. The Maryland Court of Appeals’ decision in this case underscored the significant responsibilities and limitations of an agent under a POA.

The ruling in King vs. Bankerd highlights the importance of specifying the extent and limitations of an agent’s authority in a POA. It emphasizes that agents must act in the best interest of the grantor and with explicit consent for significant actions, especially those involving the disposal of assets.

In light of King vs. Bankerd, drafting a POA that includes the power to dispose of assets requires careful consideration. This section would offer practical advice on drafting a POA, including the importance of clarity, the need for specific limitations, and ensuring the agent's actions align with the grantor's best interests.

The case of King vs. Bankerd serves as a cautionary tale of the powers and potential pitfalls of a POA. While empowering someone to manage your affairs, especially in disposing of assets, can be a part of strategic planning, it requires careful drafting and a deep understanding of the responsibilities and limitations imposed on the agent.

Maryland Supreme Court
Next Up:
We can't wait to see you!
Today is the right day to take your first step. Click below to register for our next free workshop and learn what everyone is talking about.

Attending our next free Workshops is the best way to
Get Started on your New Estate Plan!