Dear Mr. Premack: I am widowed, in my mid-70s and have three grown children. I have a Will and a Durable Power of Attorney naming my eldest son as by agent and as my executor. In the Will I left all my assets equally to the three children. Is there a way to give more flexibility to my eldest son? If he thinks one of the kids needs a larger share of the estate after I die, can he modify my Will or change the distribution to account for whatever they need at the time? – E.J.

You are the only person who has legal authority to change your Will. The agent under your Durable Power of Attorney cannot change it. However, there are ways you can modify your estate plan so that it can have the flexibility you desire.

First, you could change your Will to give your eldest son a "power of appointment." Legally, he would then be authorized to decide how your assets will be divided after you die. You can restrict him by including a limited list of people to whom he can appoint the estate (for instance, just among your children or among both your children and your grandchildren).

Second, you could leave your Will with an equal division among your children but state that if any one of them desires to disclaim part of the inheritance it would pass to your other children. This would allow each child to decide for him/herself whether to give up some part of the estate to help the needier siblings, so long as that decision is made within 9 months after your death.

State law authorizes disclaimers, so you do not have to mention the idea specifically in your Will. But you do have to specify to whom the disclaimed funds would pass. For instance, if your Will says that if eldest son fails to survive you his part would then go to his children, then a disclaimer could only transfer his part to his children. Your goal is to spread the money only among your children, so your Will should be modified accordingly.

Third, in the Durable Power of Attorney you could authorize your eldest son to make gifts on your behalf while you are still living. You have legal power to make gifts to anyone you choose, but your agent only has that power if it is specifically granted in writing inside the Durable Power of Attorney. Using that power, your agent could transfer assets from you to your other children, removing those assets from your testamentary estate and skewering the amount each child receives. He must be careful to document the transactions, to minimize gift taxes, and to consider the loss of a step-up in basis resulting from gifting.

You could also authorize your agent to transfer assets from your estate into a pre-existing trust which you have established. The trust could name him as Trustee and could either allow him to make appropriate amendments or allow him a power of appointment over the distributions.

There is some controversy over whether you can authorize your agent to create a trust for you from scratch. In a recent case, the Texas Court of Appeals said a trust can only be created "if the settlor manifests an intention to create a trust" and that an agent cannot have the necessary intent for the settlor. The case may apply only to a plain statutory power of attorney, so that using a more complex power of attorney (one that contains a clause explicitly allowing the agent to create a trust) an agent could fulfill the "intent" requirement.

Be sure your power of attorney goes beyond the basic statutory provisions by including specific instructions on issues like gifting and establishment of a trust. Then your eldest should have enough flexibility to accomplish your goal.