Follow
Share

My brother and his wife have joint accounts , can I write checks without permission from his spouses POA.

This question has been closed for answers. Ask a New Question.
Find Care & Housing
You may want to hire an elder law attorney for a matter this complicated.
Helpful Answer (0)
Report

As someone else pointed out, 'm not sure if you are coming back to read responses Johnboy but if you are, the more simplified answer to your original question is in most cases, yes. Now again that's the simplified answer and there may be restrictions depending on the state he is in but you are effectively him in most cases, meaning unless the checking account requires both he and his wife's signatures on checks (some do) or there is some restriction written into the POA document, you both have the authority sign checks acting as your brother (sister) and on their behalf.

That said, there is a variety of good info here based on various interpretations of the situation. There is of course info about the situation missing that has the potential to be key. But the way I read it (partly based on my own life experience of course) it sounds like perhaps this was either a second marriage or just a late in life marriage perhaps and either there aren't children at all or they just don't have them together. It also sounds like they spent at least some time thinking and talking about how to care for themselves and who to put in charge of that as evidenced by the fact they both have a POA appointed and it may very well be that they have already decided and set up for some of the things people are warning and preparing you for, though it seems like you would probably know about that if they had. It also sounds to me as though there may very well be his money, her money and their money probably because they had well established lives prior to this marriage and maybe each set up a POA prior to their marriage and that's why the 2 unconnected choices or maybe I'm reaching way to far and am way off base. Either way it sounds like you arr both kind of put in the same spot and really trying to work together. Again, I don't know how well you know each other but it doesn't sound to me like you know each other well or have spent a lot of time together by the way you refer to her. I don't mean that you sound as though you don't like her or anything just as though you don't know her very well so it says something positive about both of you that you are trying to communicate and do this together from my perspective. I so commend you both for that and strongly encourage you to try an cultivate that instinct rather than become more and more suspicious and territorial, which doesn't mean ignore due diligence or allow yourself and your brother to become doormats it just means try to stay in that "we are family" frame of mind if you can because you are both through marriage and your love for your siblings.

This trust may very well be something set up long before the marriage or set up as someone else suggested for monies inherited by your SIL and intended to be passed on or something like that which certainly doesn't mean the money shouldn't be used to pay for her care expenses or that it wouldn't have to be if she were going to qualify for government help but misconceptions or understandings about it on the part of her sister and POA may be what is causing her to be so protective of it and it may not have anything to do with greed, she may have no conception that what she is asking or doing could be viewed as selfish or unfair at all. The possibility that she has info that makes her actions perfectly understandable and thinks you have the same info is as likely as the possibility that she is purposely being less than forth coming and trying to soak your brother as much as she can and doesn't care about him or his side of the family. But she's agreed to take on the care and responsibility of her sister, just as you have for your brother so she can't be all bad and I would encourage you to do everything you can to nourish a good working relationship, seeing each other as family if you will and continue talking and working together rather than making quick moves that could be seen as aggressive, accusatory and or self serving. I don't mean to say don't protect your brother and yourself just think about how and what you do, moves that protect them both might be better than ones that serve only your brother and it seems to me the best place to start is the attorney who did the POA paperwork and the trust as well as any wills or other medical and financial paperwork that might exist. If that professional is still around they may very well be able to answer all of your questions, both of you and I would suggest going together the first time at least. You may find that your SIL (by marriage I think?) has info and questions that you know nothing about and vice versa and if that isn't the case simply including her and considering the two of you a team will go a long way toward finding a good way to do this work together which can only help. Of course if you find you aren't comfortable with this attny or what your finding out then you know sooner rather than later that you need to consult another professional as well. Better to find out and start that sooner than later.

You don't want to be doing this care taking all on your own if you can help it and they are a couple after all, I'm assuming treating and keeping them that way will enhance their lives and this experience. Anyway the attorney who wrote any or all of this up was probably privy to what their wishes are and why they set things up the way they did, what they were thinking so you can both go from there. If that or those (depending on what you find) attorney isn't available or helpful and between you you aren't able to come up with people who may have helped them and know what they were thinking/wanting, this is all assuming your brother doesn't have lucid enough times to tell you himself, then the two of you might consider going to an attorney who specializes in this area of elder and memory care clients to consult on all of this. Remember no matter how much money they have and maybe more so if there is some, there will be steps to take that are better than others and requirements for spending that money and how before getting any help with the financial needs and medical care they each and jointly need. The best moves may be different if the goal is to keep them together than it would be if just one of them was afflicted and needing AL and MC. There are ways to protect some of the assets if you do it right and while it may be too late for some of that if they haven't already planned some of that the more info you have the better decisions you can make for their immediate needs as well as long term and of course this means knowing who all the players are, what's most important and what options you have may have to consider along the way. Figuring out how the two of you (I'm back to you and the SIL now) can and should split and share the responsibility is going to be much better for everyone as time goes on then always thinking about how to best protect your brother and outmaneuver her or being at odds at all. Sharing the chores of paying living expenses (by the way your brother and his wife's funds should be used to cover any attorney expenses in case that wasn't clear) and caring for them both is going to be far better than figuring out who watches TV the most and should be responsible for the bill. Who will be accompanying them to doctors appointments? Will you be going with your brother and she will go with your SIL? Do they share the same doctors so it might make sense to take them both together? Are they currently living at home or in a facility? Will they go to a facility together or is there a preferred at home situation? I know your dealing with specific immediate needs now that had you facing a need for this original question and you are probably just starting to sift through all of these questions and more. Speaking from some experience you are far better off considering as much of the future possibilities now as much ahead of time as possible and you are far, far better off having as much help, their village, as possible and most of all having a partner in the responsibility could be a blessing rather than a curse if you treat and look at it that way.

You obviously love your brother very much and he trusts you to both care for him and those he cares for when he can't (he gave you the job and you accepted it), your SIL and her sister obviously share the same trust and love and the love and trust your brother and his wife share binds you all together, all 4 of you and makes you family. You and his SIL are really in the exact same spot if you think about it and would both benefit from having each other to lean on. Hopefully there are enough similarities or at least reason between you that you can build on that fact and the love you share for your siblings that make you family.
Helpful Answer (1)
Report

You must be kidding! I just can't help but ask why these demented people don't have a guardian? Another thing, be very careful about the money situation. Right now I'm still dealing with the aftermath of elder financial abuse against my dad who died with Alzheimer's. He never had a guardian either and he had a live in POA who ended up taking advantage of him and right now it's gone past the estate phase and now it's become a lawsuit. What ended up happening is the POA ended up using her powers and making herself the beneficiary of a life insurance policy by changing it from next of kin to herself. Definitely illegal in Ohio, especially since he died intestate, meaning no will. By law I'm the only one entitled to what he left behind. Let my story be a warning to be very careful handling this type of matter because what happened to my dad can easily happen to anyone who happens to have a mental disability such as dementia or Alzheimer's among other disabilities. I can't tell you how many times I see guardianship abuse cases come across my Facebook timeline daily, I see them every single day and sometimes multiple times a day where someone has taken advantage of some elderly person out there, but usually the wealthy are targeted like my dad was. Vultures usually go where the money is, which is what happened to my dad and I think there may be a pattern there so be very careful that you don't fall on the wrong side of the law
Helpful Answer (0)
Report

Power of Attorney can be very complicated; I had to deal with them when I was on the retail side of banking years ago.

1. Look at what your POA for your brother states/does not state.

2. Are all of the financial accounts joint?

3. If the accounts are sole and separate and it states that you are allowed to write checks from ONLY your brother's account, that is all you can do. You cannot touch your sister's-in-law account(s).

4. Both POAs must be filed at the appropriate bank(s) i.e. does your brother have other accounts with other banks/sister-in-law? This happens quite frequently as 1 spouse may hold money out and the spouse does not know anything about it.

5. If joint, have records been kept as to what your brother deposited as sole and separate i.e. payroll and same for your sister-in-law. Parties can record what they have provided financially from their means of job, inheritance etc. IF they have not kept such records and the State is Community Property, you now have a very sticky wicket.

Community Property States means that ALL FUNDS deposited into a single account belong to both parties. Example: State/Federal tax returns. If the tax refunds are in both names then that money must be deposited into a joint account. The person making the deposit CANNOT indicate a 'LESS' deposit (meaning that they want money back from the deposit), but must deposit the entire amount. To get money back, they must write a check from the account.

6. Does the POA state that you are ONLY able to write checks for financial debts only since they are both still alive?

99.9999% of the time, the POA WILL NOT ALLOW YOU TO WITHDRAW JUST TO WITHDRAW from the account. It will stipulate EXACTLY what you can and cannot do with their monies.

7. Since you have POA and it is filed with the bank, you should be able to verify if your brother/sister-in-law designated beneficiaries on the accounts. It is possible that neither you nor daughter of sister-in-law are beneficiaries. That would mean that when both have passed, the Court Conservator must present all assets (including the bank accounts) to the Probate Judge.

YOUR POA WILL MEAN ABSOLUTLEY NOTHING AT THIS POINT or HER DAUGHTER'S.

8. Should your brother pass first; unless other wise stated in his Last Will and Testament regarding how his decision has been expressed (and it depends on what the laws are in your State regarding Community Property/Common Property); everything will go to the living spouse automatically. NONE of the property can be touched until the last survivor has passed...then the fight begins over who gets what...have fun with that.

9. IF the accounts are joint, neither you nor the daughter are able to write monies from the account(s) without the knowledge of the other. Both POA parties must be in agreement.

Actually, being that there are 2 POAs; both of you need to talk with the Bank manager or whomever is in charge of POAs together. The accounts need to be flagged
a. that the owner(s) have mental condition(s) so that fraud is not committed by either an outside source (in-home care giver) or you/daughter
b. requires 2 SIGNATURES on the checks; you and the daughter.
c. with the exception of the flagging for potential fraud; once 1 of the parties pass, then the POA holder for that party become invalid EXCEPT for the Will(s).
d. were these POAs properly witnessed/notarized? People do not realize that Notary Laws change too. The Laws in AZ (my home State) changed in 2011.

10. Last Will and Testaments will now become involved many times at this point.

In some States i.e. AZ, the person that has passed (here again, all property reverts to the survivor) the Will must be presented to the County Recorder's office at the time of death or ASAP. That way, if it has been instructed that properties that were owned prior to the marriage will stay separate from the properties that were obtained during the marriage cannot be given to those who are stated in the Will until the passing of the survivor.

Now, here is another area of concern. Who has the original copies of the Will(s)? Just because you have POA does not mean that you have the ability to execute the Will(s).

As the example in AZ, as long as the is Will, has been witnessed by 2 uninterested 3rd parties, the Will(s) cannot become invalid unless
1) the Will has been destroyed in front of witnesses and attested to the fact.
2) cross outs have been made to change regarding who is Executor, gets certain property etc.
3) a codicil has been added to change the wishes of the person (again, must be witnessed by 2 3rd uninterested parties); then the original Will stands as the wishes of the person. Again, you will need to research the State Laws regarding Last Will and Testaments.

In some States i.e. Washington State, if things have not been changed in the Will regarding properties from a previous marriage, then things such as retirement funds do not transfer automatically to the surviving spouse; they will go to the previous spouse or surviving children (happened with my step-father's brother. All of his pension from Lockheed went to the ex-wife and children from his previous marriage).

My own sister has stated that she is going to have our Mother re-do her Will because my sister
1) doesn't understand Probate
2) has decided that Mom's Will is out dated, meaning that my sister has read the Will and she will not have access to her inheritance unless she goes through me.

11. I only bring the Will(s) into this question is because, should money be drawn from accounts via the POA, then one becomes invalid due to death of the party concerned; you are looking at the possibility of:

a) accusation of fraud by withdrawing money from a joint account without the knowledge of the other POA
b) the surviving party can be influenced by the other POA holder to change the Will(s) fraudulently and cut you/her out of any inheritance that your brother wanted should he pass 1st i.e. what my own sister is attempting to do.

Trusts are a horse of a different color. They can be a good thing, but they can be a bad thing too. They take a LOT OF TIME and RESEARCH as to what one can or cannot do.

The Trust may only be accessed via a Trust officer for the account meaning that you must present a valid reason that must be vetted by the Trust officer as to whether or not monies can be withdrawn (you would not receive the money directly, but it would be given to the party requesting restitution). There may be a time limit (trust babies usually cannot get to the money until they are 21 for example) before any monies can be touched.

It maybe a BLIND Trust. You will not know any thing about what/how things are to be handle at the death of either party until both have passed. Neither spouse will be able to interfere with making changes to a Blind Trust depending on the banking Laws for the State.

All of the money that President Trump has made prior to having become President, has been placed into a Blind Trust. His oldest son is in charge as well as the Trustee and the President cannot see anything that is being done while the monies are in the Blind Trust. He cannot access any of his money and can only receive his pay as the President for 4 yrs.

There are Revocable Trust, Irrevocable Trusts......property beneficiary deeds....

What all of this boils down to is both you and the other POA need to sit down with an Estate Attorney together (lots of money as they charge by the hour (the 1 hr consultation is generally free) and get a pretty good chunk either out of your pocket(s) or even the Estate.

He/she may change the POAs into 1 that would name both of you jointly and what both can or cannot do without the other's knowledge.

Your brother/sister-in-law may not have written Wills and then that could cause the Estate to end up in attestate (sic) and the 1 person will get more from the estate than the others per the Courts.

I am not sponsoring or pushing this next suggestion. All I will say is that I have received so much information from this site, it is absolutely amazing. I found it when I was researching things that my sister was telling me what she was going to do and certain legal papers magically disappeared.

I have a membership with JustAnswer.com. For a mere $49 a month, I can send my question to the same Estate Attorney (if you feel comfortable with a particular attorney) with as many questions as I have regarding any thing that relates to my Mom and what my siblings are doing, hence the issue of Mom's Will.

I research my home State Laws, present the Law/statutes along with my understanding of the Law to this one Estate Attorney. He answers within a few hours (depending) or will let me know that he needs to research further and will let me know about how long it will take i.e. 24 hours. He explains everything to me so that I am able to understand what I am or will be dealing with.

For me, $49 is better than spending a few hundred an hour and each and every time you have a necessity to contact an Attorney. The attorneys on this site cannot write up legal docs, but they can give direction of what you need to do.

Sorry for such a lengthy comment, but I just wanted you to know what some of the situations are that you may need to deal with legally and otherwise.





I spoke with an Attorney and he told me to let my sister do what she wants regarding the Will, because I have the originals and my sister's redo will not holdup in Court. Everything will revert to the original, meaning that I am the person that must follow Mom's wishes...period...the end.
Helpful Answer (0)
Report

AgingMyself, this Trust issue, who it's specifically for, who the Trustees are and similar questions are really at the crux of the asset assignation issues. Until we know more, we're just guessing.

But the OP posted 3 days ago; unless I missed a post, he hasn't been back.
Helpful Answer (1)
Report

I'm wondering if the trust at issue is one set up by perhaps Wife's parents for Wife's benefit? If so, I'd think the terms of that trust should make it clear as to whether any of it could be used for Husband's expenses or not.
If the creator(s) of that trust wanted to only provide for Wife's care, leaving the rest for other family members, then Sister may be acting in accordance with those terms, as she should.
Helpful Answer (0)
Report

If both have dementia neither POA can act legally, unless they have durable POA as well, which would require a formal declaration of incapacity to take effect. If a POA acts for a person with dementia who hasn't been declared incapacitated it could easily be challenged. Sounds like time for an attorney to pick this over & get it straightened out.
Helpful Answer (0)
Report

I will add, Sister, as POA, could also clean out joint accounts. It might be a good time to have separate accounts if only to avoid accidental overdrafts.
Helpful Answer (1)
Report

AgingMyself, good insights. I think one of the problems in this situation though is separating the obligations of the proxies under the POAs with those of the Trustees in the TOD trust. They might be the same, might not be.

We could benefit from some clarification on this Trust issue.
Helpful Answer (0)
Report

It sounds to me like the problem is that Sister is wanting Husband's assets to be spent up for care of both, leaving Wife's assets to pass into the Trust that benefits only her family, and John thinks that's unfair.
Both POAs have the responsibility to act as the representative of the grantor of the POA as the grantor would act himself or herself.
A knotty problem, perhaps. Did Husband want to provide for Wife's family ahead of his own care? Did Wife want her assets to go to her family instead of taking care of him? If each wanted to preserve their own stuff for their own family, it puts the POAs at odds--on opposite sides. Most places, spouses are expected to pay for each other's care, so Wife's assets should rightfully go to H's care; but I don't know if a court would order it if H had sufficient assets of his own.
I'm thinking that anything jointly owned should go 50/50 unless you are aware of other desires of your grantor.
If John wants to, as POA he can clean out the joint accounts, open a separate one for his bro, and go from there. Anything bro could sell or spend, John can sell or spend. But, in an effort to get along, that might not be a good idea.
Helpful Answer (0)
Report

Creating 2 checking accounts so you both can handle their affairs separately is a good idea. But the spouses name should be on the account as POD in the event they need the money to live after the first one dies. Banks can usually set up a secondary POD so when the 2 nd person dies that’s where the money would go. But the big question is do they each have wills and what do the wills state? What does their trust state as to whom gets the money when they die? But in any event I would think it would go to the surviving spouse before the wills or trusts kick in. If they don’t have wills it’s too late to create them . Get a lawyer who specializes in wills and trusts. They usually are very familiar with POA’s and how to handle difficult situations. Try to do this before the situation gets out of control.
Helpful Answer (0)
Report

I'm a little bit confused.

I don't recall much about Testamentary Trusts, or TOD trusts, so I did some quick research. Unlike a Living Trust in which property and assets are transferred during the lifetime of the individual benefiting by the Trust, a TOD trust assets are transferred after death.

Still, when a TOD trust is created, I would assume that specific assets are designated, b/c otherwise, who would determine which assets are affected after death? In that respect, does the TOD trust specifically identify which assets are for the individual for whom the trust was created?

I think you could benefit from a discussion with the attorney(s) who prepared these trusts to determine what authority your SIL has. It sounds to me as if she's overstepping her bounds.

But there are some legal complexities as well in this situation. It's also important to remember that no one "has POA" over someone else. That authority is granted so that someone can act on behalf of, and in the best interest, of the individual who creates that arrangement. You and other proxies serve at the pleasure of, and are responsible to, the individual who created the POA.

I've spent some time trying to sort out the arrangement, and frankly, it's just not clear. I think everyone could benefit from discussing their individual roles with the attorney who prepared all the documents. Otherwise, I see the potential not only for confusion, but misappropriation of assets.

Get this straightened out now before anyone dies and asset distribution ends up being a contested issue.
Helpful Answer (1)
Report

I know nothing about the legalities, but it seems to me that before lawyers are brought into the picture, perhaps this should be discussed in a friendly manner over coffee at the kitchen table.
Helpful Answer (2)
Report

My first suggestion would be to have separate checking accounts opened. Are they still living at home or are they in a facility? If a facility, are they in a room together or separate? Do they each get SS and/or a pension? Each should be using their own SS funds to pay for any lodging, food and services provided. If your brother is the only one who had a pension, perhaps that could be split somehow between the two, but he certainly should not be using ALL his funds to provide for their care if SHE has funds that are available to be used for her benefit.

As I noted in another thread, if at any time you seek representative payee for SS (and any other income), they will REQUIRE reports on how the funds are used. The SS booklet specifies how the funds may be used, starting with housing and food for the beneficiary and then lists other expenses that are approved (and clearly states no fees or reimbursement for the care giver, unless they approve it.) If any/all of your brother's funds are being used for his wife's benefit, this could be a problem.

I would definitely seek advice from an elder care attorney. He/she will be able to advise you the best (legal) way to handle this. I would think that trust had been set up to take care of the wife in the event that something happened to the husband. If SIL is holding out using those funds for the benefit of the wife to ensure inheritance, she is at the least morally wrong. Move your brother's funds and monthly deposits to another account and seek out that legal advice!
Helpful Answer (4)
Report

Wow, I understand there is a first to go thought (nursing home or beyond) which would make sense for you both. I would ask where did their income come from? It would seem SIL is not looking at the couple being a couple but as individuals. What sources of income falls under whom? If there is a Trust involving your brother and you have POA you have a right to the document. I would have your lawyer write a letter to her lawyer to further discuss just in case something shady going on with SIL.
Helpful Answer (1)
Report

Depends on how the trust was set up and who benefits when they pass. Think u have a right to know the contents. I think you should talk to lawyer.
Helpful Answer (4)
Report

We have been divulging to each other the assets for each spouse but sister in law seems to be holding back on a TOD (trust on Death) that she wants to reserve for her relatives. Does not want this trust to be used to cover her sister in nursing home. I want it to be part of the 50/50 split of all assets, sister in law is very reluctant to share wants my brother to use all his assets first?
Helpful Answer (1)
Report

That sounds complicated! Technically, yes you can, but what is going on with his sister in law that makes you ask this question?
Helpful Answer (2)
Report

This question has been closed for answers. Ask a New Question.