We believe that the customer may add himself as a payable-on-death beneficiary on the account if the power of attorney agreement expressly provides authority to name or change beneficiaries.

Whether or not your customer may add himself as a payable-on-death beneficiary depends on whether the power of attorney agreement provides the son with that power.

If according to the power of attorney agreement, your customer does not have the right to name or change beneficiaries, he will likely not have the authority to name himself as a payable-on-death beneficiary. Powers that are granted to the power of attorney are provided for in the agreements and courts are hesitant to allow an expansion of powers that are not expressly granted. Shores v. Nicholls (In re Estate of Nicholls), 960 N.E.2d 78 (Ill. App. Ct. 2011).

Regardless of the type of power of attorney agreement, you should look to see whether the agreement specifically states that the power of attorney shall have the power to change or name a beneficiary. See Shores v. Nicholls (In re Estate of Nicholls), 960 N.E.2d 78 (Ill. App. Ct. 2011). Section 2-4 of the Durable Power of Attorney Law provides that the agreement “may specify in the agency the event or time when the agency will begin and terminate, the mode of revocation or amendment and the rights, powers, duties, limitations, immunities and other terms applicable to the agent and to all persons dealing with the agent, and the provisions of the agency will control.” 755 ILCS 45/2-4. Additionally with respect to the Short Form Power of Attorney for Property, the relevant powers are included on the form, and if the power to change or name a beneficiary is absent, then the statute says the power of attorney “will not have authority to make gifts of the principal’s property, to exercise powers to appoint to others or to change any beneficiary whom the principal has designated to take the principal’s interests at death under any will, trust, joint tenancy, beneficiary form or contractual arrangement.” 755 ILCS 45/3-4.

Illinois courts have held that for a power of attorney to possess the power to name or change beneficiaries, the power of attorney form must specifically state that the agent has such powers. In re: Estate of Romanowski, 771 N.E.2d 966 (Ill. App. Ct. 2002).