Can an Executor of a Will Give a Power of Attorney to Someone From Prison?

by Timothy Mucciante Google

    The executor of an estate possesses only those powers granted to him under a will and by state law. A power of attorney granting a prisoner authority over an estate may be possible depending on the powers granted to the executor. Although an executor has the right to delegate authority to anyone he deems fit, he must do so while keeping the fiduciary duty he owes to the estate in mind.

    Powers Granted by the Will

    The maker of a will, also known as the testator, appoints an executor (also known in some jurisdictions as the “personal representative”) who carries out the decedent’s last wishes. Powers granted to the executor are specificied in the will. Typically, these powers include the authority to inventory and dispose of estate assets, pay creditors and distribute assets to the beneficiaries as outlined in the will. If the executor’s duties and responsibilities are not defined in the will, the executor must act in accordance with executor duties as set forth in state law.

    Powers Granted by State Law

    The executor has a fiduciary duty to act prudently in handling the administration of the estate. If he breaches this fiduciary duty by causing damage or loss to the estate beneficiaries or creditors, he may be liable to any interested party that loses money or other assets. An executor may appoint or employ any person, including a prisoner, to assist in identifying estate heirs and creditors, collecting and distributing estate assets and preparing an accounting. He may rely solely on the decision or actions of any person, prisoners included, that he appoints to assist him in handling estate matters.

    Breach of Fiduciary Duty

    If an executor gives a prisoner power of attorney to manage or assist in the administration of the estate, he may be liable for any of the prisoner's actions that negatively affect the estate. If the prisoner, as agent of the executor, steals money from the estate or commits another crime using the powers granted to him by the executor, the executor may have breached his fiduciary duty by giving the prisoner power of attorney. It will be up to the probate judge to determine if his actions fall below the standard of care described by state statute.

    Remedies

    A beneficiary or estate creditor who does not agree with an executor's decision to grant a prisoner power of attorney may request the probate court to temporarily restrain the executor from doing so. Alternatively, a beneficiary or creditor may also request the probate court remove the executor if it appears he breached his fiduciary duty to them by giving a prisoner power of attorney . The executor must stop most work for the estate once he receives notice of the removal request to the judge.

    About the Author

    Timothy Mucciante has worked as a lawyer and business consultant, and has been writing professionally since 1981. His writing has appeared in the "Michigan Bar Journal" and many corporate publications. Mucciante holds both a Bachelor of Arts in political science from Michigan State University and a Juris Doctor from Michigan State University/Detroit College of Law.