You heeded the advice of your friends or you read an article about essential legal documents and finally encouraged your aging loved one to execute a power of attorney (POA) form. You both tried to plan for the unexpected and thought you had your bases covered, but now your loved one is incapacitated and their bank is refusing to allow you access to their accounts. How can they do this if you’ve been legally granted financial POA?
Reasons Why Financial Institutions Won’t Honor POA Forms
Sadly, this scenario is relatively common. Many caregivers panic when banks turn them away, but there are ways to resolve this dilemma. The first step is to understand why the bank is refusing to accept this paperwork. The three most common reasons are explained below.
The POA Isn’t Durable
First of all, if the POA used to appoint you as an agent is not “durable,” then it will only be valid while the “principal” (your loved one) is of sound mind. Durable means that the POA continues to be effective even after the principal becomes incapacitated and is no longer able to manage their finances. Seniors and their caregivers should try to use a durable power of attorney whenever possible to avoid this problem.
The POA Hasn’t Been Activated
Second, the POA may be “springing.” That means that it will only become effective upon the incapacitation of the principal. Incapacitation must be proven according to the terms spelled out in the POA document. For example, a generic springing POA will usually indicate that at least one physician must have examined the principal and determined they are unable to manage their affairs due to mental incapacity, etc. In such a case, the bank will want to see the POA itself, the physician’s letter(s) and any other documentation needed to satisfy the requirements for activating the POA and giving you the power to act on behalf of the principal.
The POA Is “Stale”
Even if you’ve done everything right and the bank should recognize you as the agent and give you access to your loved one’s bank accounts, it still may refuse to do so because the document is “too old.” This legal notion of “staleness” implies that, if a POA is more than a few years old, then there is a chance the principal may have revoked the power or signed a new one to replace the old one in the interim. For this reason, it is a good idea to keep POA documents “fresh” by signing a new one every five years or so.
How to Handle POA Problems with Banks
Even with the best attorney-prepared POA form, you may still run into problems when trying to get banks and other financial institutions to recognize the form’s validity. Banks are understandably nervous about granting access to a customer’s accounts. They could be sued if they allow the wrong person access or give the right person access under the wrong circumstances. While this ordeal can be frustrating for caregivers, it’s important to remember that banks are not just trying to protect themselves, they’re trying to protect their customers’ funds, too.
If the bank is acting unreasonably, though, hiring an attorney to place a phone call or send a strongly worded letter to an employee higher up at the bank (i.e. with more authority regarding these matters) may resolve this troublesome issue and grant you access to the appropriate accounts. If all paperwork is otherwise in order, some attorneys need only threaten legal action and the bank is suddenly very happy to cooperate.
Finally, some banks are just more difficult to deal with in this arena and should be avoided if possible. Local attorneys who practice in this area will have practical knowledge of which financial institutions are notorious for hassling agents under a POA and which are easier to deal with. Finding this out before incapacitation is an issue will be your best bet to avoid trouble down the road.