I agree about practicality as well as the law. It's horribly frustrating for people who know that they are doing what is best for their parents only to be stopped by the fact that a simple document wasn't signed. It's never simple to know. The laws are there to protect the elderly from adult children or others who do not have the elders' best interest in mind. We all know that they are out there. However, most of us are just trying to get them through the best that we can. I think I'd have a an elder law attorney help because I'd be afraid of repercussions without it. But I agree that well meaning people "forge" the signatures all of the time. I was fortunate in that my parents had POAs signed early so I could sign checks with their name and mine underneath as POA. I've already done this for my kids.
I have to say that I had a horrible time closing out my parents' bank account after they died (it was empty). POAs are no good after death. Finally, a copy of the will did the trick. You'd think a death certificate would do it, but no. I needed more documentation. Finally, a copy of the will did the trick.
Good luck to all who have to fight with this issue, Carol
Well, that is unfortunate that the bank wants the person signing the document to then sign ANOTHER document saying that yes, I really did sign the first document. And will they want a third one proving the person actually signed the second document? As you can see, this is ridiculous. If the durable power of attorney was signed and notarized, that gives added proof that the signature was valid. A bank cannot be sued for relying on validly signed POA.
That's all well and good, but if indeed a bank refuses, what can you do? I have been at meetings with other attorneys who say "I advise my clients never to use Bank X because they always cause trouble with POAs," etc. But the average person has no idea of a bank's reputation in this regard and is thus at their mercy when the time comes to try to use a correctly prepared and signed POA.
Short of filing an expensive legal proceeding against the bank to force them to recognize the POA (precisely what you were trying to avoid in the first place by using a POA), you can have the attorney who prepared the document call the legal department and try to persuade them to accept it. Or say that YOU will sign a hold harmless provision that protects the bank if they act in reliance on the POA. Good luck!
The same thing happened to me. I was really stunned. I think I had the form sent to put my name on the accounts. My mom signed. Did she know what she was signing? Maybe not. But my name is now on the accounts and I pay all of my mom's bills, do her taxes, and all of that. I am happy to be able to do it.
I believe that behind closed doors, a lot of signing goes on for the sake of practicality. My mom signed the papers to get herself into Al when she didn't want to go--but she was so confused she just signed. The person who brought her the papers knew that my mom didn't know what she was signing and felt bad about it but there was no other way!!! My mom, like so many others, was a complete mental and emotional wreck. (She is much better now with the correct meds but it took us a while to get there.) I can only say, thank God that there are people out there who are willing to bend the rules a tad to help.
My neighbor signed the mortgage to sell her parents house without a POA--this is to say that she forged their signatures. Was that wrong? Of course. But it was absolutely necessary. The parents, both with dementia and very frail, needed the money to go into AL. There was no other way.
Is this an isolated case? I doubt it very much. What do you think?
Salisbury I am sure absolutely sure it is not an isolated case but if there as been a diagnosis of mental incapacity and that diagnosis is dated there could be serious implications that could occur from that signature. As for forging a signature - I could not possibly agree that it is right to do so. the courts can appoint guardians/conservators there is no need to go through a duplicitous route which could end in prosecution. While understand the frustrations the alternative are not within the law.
At the same time, how frustrating is it to have my mom sign a POA back when she was in full mental health, only to have it ignored by the bank??????
I say, get the form, have her sign it whether she knows what it is or not and, as you say, ohJude, assuming there has been no dated diagnosis of incapacity, and get on with the business of taking care of her affairs.
As I have posted before, this is certainly a difficult issue and results in more than a few choice words between me and bank representatives. I will add these thoughts: 1) Christine73 is incorrect, and is mixing up two ideas. A durable power is effective even if someone is incapacitated. A springing power is one that is not effective immediately, and only 'springs' to being when incapacity is shown by whatever method is provided in the POA. 2) Some states, including mine in North Carolina, do provide that if a bank refuses a POA it can be held liable in the Courts unless it had a good reason to refuse it. Usually pointing that out to the bank does the trick.
Before I got the POA , Social Security ( Mom had to go and give a change of address) made me payee of her check. I had explain to the lady mom had dementia. I took the copy of the letter from SS to the bank and had mom a new account made. I then on line transferred all her money into her new account, all but 5$. After awhile with no activity that account automatically closed.
Now the new account had my moms and my name with payee beside it. I had to keep all receipts and could only spend the money for my mothers needs, and part of grocery bill, utilities, since she lived with me and could share the expense. When doing the payee you are responsible for her money and will be audited once a year.
My elder law attorney told me that banks have to abide by the POA. The POA is a properly executed legal document. It is not optional. As far as "different POAs" are concerned, there are 2: Durable POA, which is in affect immediately, and Springing POA, which comes into affect once the person is incapacitated. It makes sense that if you have "springing POA," you should have to prove that the person is incapacitated, so that the bank can properly abide by the letter of that document, which basically is "only accept if person is incapacitated." That does not sound like the case here. It sounds like a bad case of ignorance. That's why I recommended going up the ladder to some one who knows the rules. Often, the transactional people don't. This is also what my elder law attorney suggested if someone at first rejects your POA. That being said, there are new (past 5 yrs) standards for POAs. They need to detail all the powers, for example, "bank accounts, real estate, safe deposit boxes," etc. line by line. I would also call the corporate office of this bank and let them know what happened. One of the higher ups will call the bank manager and make sure he/she understands that the bank must comply with all properly executed legal documents.
jo12345 you aint gonna get ANY advice with that approach. So lets be kind and start again - what have you tried thus far? Then others may try to help. All the advice we give is based on our personal experience - if that isn't good enough for you then might I suggest you pay to get advice from a financial and legal expert in your area.
Jo I have been through this entire thread and THE ONLY comment I can find of yours is this:
i have tried all these. doesnt anyone out there have any good advice???
Now whether you intended to be rude or not I don't know but it sure as hell came across like that to me because it sounded like you were inferring that all the previous advice was 'not good'
I haven't been sarcastic - I can be if you would like but others will tell you thats not my way. If however you have tried every piece of advice that people have given you and that has not been successful then you need to realise that the bank is under no obligation to recognise a POA immediately it is handed over. If you make an appointment to discuss the problem formally with the branch manager you will probably be able to argue the case more fully. You never mentioned anywhere in your first post about lawyers so please don't expect me to know things you have not articulated.
The reason they wont instantly recognise it is multitudinous and while it is a bloody nuisance and it is (been there done that got the tee shirt) they actually wanted to see my mother to make sure she was still alive for heavens sake. They also wanted the doctors certification of incapacity and it had to be dated AFTER the POA was registered with the courts. It is a lot of hoop jumping but you can get there eventually
Of course if you have posted on another thread and have expected me to hunt through the entire site then I will apologise - I don't have that much time on my hands right now but then I am the sole carer for my mother and trying to help my two children deal with the diagnosis of a terminally ill father.
HOWEVER
Banks wont have a blanket policy against accepting a power of attorney, since they every state has different laws.
Bank authorities are legally responsible to honour powers of attorney that have taken effect unless they believe or conceive that there may be something suspicious such as a forged signature or possibly a later POA which renounces the one you hav or perhaps yours has not been registered .
The problem is that most bank employees - especially the tellers rarely understand the law in relation to POAs so you have to go higher
As you appear to need to get the power of attorney recognized, you will have to be persistent. Insist on speaking with the branch manager. If he wont help ask for the number of the bank's legal department and call them yourself.
You will have to supply a copy of the power of attorney. If your mum's POA specifies that it takes effect when she lacks a certain mental capacity (rather than a specified date), you are going to need to prove that with a doctor's certification of that condition.
And for some states you have to register it with the courts which can cost about 70$
After that I haven't a clue and since I am British I reckon I have done quite well researching it
I have to say that I had a horrible time closing out my parents' bank account after they died (it was empty). POAs are no good after death. Finally, a copy of the will did the trick. You'd think a death certificate would do it, but no. I needed more documentation. Finally, a copy of the will did the trick.
Good luck to all who have to fight with this issue,
Carol
That's all well and good, but if indeed a bank refuses, what can you do? I have been at meetings with other attorneys who say "I advise my clients never to use Bank X because they always cause trouble with POAs," etc. But the average person has no idea of a bank's reputation in this regard and is thus at their mercy when the time comes to try to use a correctly prepared and signed POA.
Short of filing an expensive legal proceeding against the bank to force them to recognize the POA (precisely what you were trying to avoid in the first place by using a POA), you can have the attorney who prepared the document call the legal department and try to persuade them to accept it. Or say that YOU will sign a hold harmless provision that protects the bank if they act in reliance on the POA.
Good luck!
I believe that behind closed doors, a lot of signing goes on for the sake of practicality. My mom signed the papers to get herself into Al when she didn't want to go--but she was so confused she just signed. The person who brought her the papers knew that my mom didn't know what she was signing and felt bad about it but there was no other way!!! My mom, like so many others, was a complete mental and emotional wreck. (She is much better now with the correct meds but it took us a while to get there.) I can only say, thank God that there are people out there who are willing to bend the rules a tad to help.
My neighbor signed the mortgage to sell her parents house without a POA--this is to say that she forged their signatures. Was that wrong? Of course. But it was absolutely necessary. The parents, both with dementia and very frail, needed the money to go into AL. There was no other way.
Is this an isolated case? I doubt it very much. What do you think?
At the same time, how frustrating is it to have my mom sign a POA back when she was in full mental health, only to have it ignored by the bank??????
I say, get the form, have her sign it whether she knows what it is or not and, as you say, ohJude, assuming there has been no dated diagnosis of incapacity, and get on with the business of taking care of her affairs.
1) Christine73 is incorrect, and is mixing up two ideas. A durable power is effective even if someone is incapacitated. A springing power is one that is not effective immediately, and only 'springs' to being when incapacity is shown by whatever method is provided in the POA.
2) Some states, including mine in North Carolina, do provide that if a bank refuses a POA it can be held liable in the Courts unless it had a good reason to refuse it. Usually pointing that out to the bank does the trick.
Now the new account had my moms and my name with payee beside it. I had to keep all receipts and could only spend the money for my mothers needs, and part of grocery bill, utilities, since she lived with me and could share the expense. When doing the payee you are responsible for her money and will be audited once a year.
i have tried all these. doesnt anyone out there have any good advice???
Now whether you intended to be rude or not I don't know but it sure as hell came across like that to me because it sounded like you were inferring that all the previous advice was 'not good'
I haven't been sarcastic - I can be if you would like but others will tell you thats not my way. If however you have tried every piece of advice that people have given you and that has not been successful then you need to realise that the bank is under no obligation to recognise a POA immediately it is handed over. If you make an appointment to discuss the problem formally with the branch manager you will probably be able to argue the case more fully. You never mentioned anywhere in your first post about lawyers so please don't expect me to know things you have not articulated.
The reason they wont instantly recognise it is multitudinous and while it is a bloody nuisance and it is (been there done that got the tee shirt) they actually wanted to see my mother to make sure she was still alive for heavens sake. They also wanted the doctors certification of incapacity and it had to be dated AFTER the POA was registered with the courts. It is a lot of hoop jumping but you can get there eventually
Of course if you have posted on another thread and have expected me to hunt through the entire site then I will apologise - I don't have that much time on my hands right now but then I am the sole carer for my mother and trying to help my two children deal with the diagnosis of a terminally ill father.
HOWEVER
Banks wont have a blanket policy against accepting a power of attorney, since they every state has different laws.
Bank authorities are legally responsible to honour powers of attorney that have taken effect unless they believe or conceive that there may be something suspicious such as a forged signature or possibly a later POA which renounces the one you hav or perhaps yours has not been registered .
The problem is that most bank employees - especially the tellers rarely understand the law in relation to POAs so you have to go higher
As you appear to need to get the power of attorney recognized, you will have to be persistent. Insist on speaking with the branch manager. If he wont help ask for the number of the bank's legal department and call them yourself.
You will have to supply a copy of the power of attorney. If your mum's POA specifies that it takes effect when she lacks a certain mental capacity (rather than a specified date), you are going to need to prove that with a doctor's certification of that condition.
And for some states you have to register it with the courts which can cost about 70$
After that I haven't a clue and since I am British I reckon I have done quite well researching it
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