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Probate and Estate Litigation Blog

Are there restrictions on an attorney-in-fact's self-dealing?

Many residents of Saint Paul may at some point in their lives have to resort to relying on an attorney-in-fact in order to help them maintain their property. Minnesotans can appoint an attorney-in-fact by creating and signing a valid Minnesota power of attorney that gives the attorney in fact the right to make important financial decisions for the protected person.

The best way to prevent difficulties is for a person to be careful about whom they appoint as their attorney-in-fact. Usually, a trusted friend or relative who has the time and ability to make good financial decisions is the best choice. However, even people who were seemingly trustworthy can, when given responsibility over a lot of money, succumb to the temptation to dip in to the money and use it for personal reasons rather than for the benefit of an estate.

In Minnesota, some types of this sort of self-dealing are permissible. For example, under Minnesota law, an attorney-in-fact has permission to engage in self-dealing so long as the person creating the power of attorney expressly agrees that the attorney-in-fact has that power. In such instances, the attorney-in-fact is limited in how much he can give himself; how much he can give is the exact same amount as how much federal tax rules allow a person to give another person annually without having to report the gift.

The idea behind this law is that a person may want to be sure that a family friend or relative who is serving as an attorney-in-fact gets a gift every year, and this rule allows a person to arrange for such a gift will still enjoying peace of mind knowing that an attorney-in-fact cannot legally give extravagant gifts to herself.

However, when naming an attorney as the attorney-in-fact, the gift tax exclusion is not the only thing limiting him or her, as the attorney also has a duty to always act in the principal's best interests. 

If a Minnesota resident believes that she or a loved one have the been the victim of self-dealing, a probate litigation attorney may be of valuable assistance.

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