Just a heads up. My state has a strong durable power of attorney statute, but I have just run into incredible problems with a major retirement financial institution over honoring it.
I have raised the issue with both legislators and our financial regulators.
Just be warned that a DPOA is just a ticket to a fight.
it has never made sense to me that many financial institutions require their own papers signed for DPOA. whats the purpose then of getting that done early on when they can still comply? I would think if you had an atty on board to be the mediator and they know the spouse is not able to competently sign a new one, they should accept the orginal if push comes to shove. if you read most DPOA are stated in a way that says they are IN EFFECT from the time they sign until its REVOKED by the same. so even if its years old, it should be legal. but we have issues just the same. divvi
Crushed, it's a good reminder for all of us. None of the financial institutions we do business with would not accept the DPOA I had without signatures on their own institutions DPOA paperwork. Not even with an attorney representing me.
Unfortunately most institutions don't explain that they will need their own paperwork signed in addition to the DPOA until it's too late and the person tries to use the DPOA to access accounts. They should have you fill out that paperwork when you open an account.
That is really harsh....first you are dealing with this disease and now the financial hoops you have to jump through.
Up here in Canada I've haven't run into any problems with our POA.
I also have a Representation Agreement - Section 9 that has made my life much easier for getting and directing any care he is getting.
I had all our assets changed over into my name only and a joint bank account that his cheques go into. So far so good. Any other Canucks here run into any problems?
I am in the states. But last summer when I was in NL , I went to an Alz support group. Certainly seemed like when Dealing with financial issues and care for AD , you have it better.
I have a lot to check into now thanks to all your comments.
Amber, our notary (we use notaries in Quebec,not lawyers) warned us a couple of years ago that banks and other financial institutions sometimes request their own documents for POA. I didn't do anything this information at the time. A couple of weeks ago my dH and I went into the bank to replace his access card ( an ATM had swallowed it up). While we were there, I asked my DH if we should make his savings acct a joint acct, and he agreed, so the bank manager made the change. DH could barely sign his name on the paperwork, and I am sure that the bank manager knew exactly why I was insisting that the acct be made joint but he just did the old "wink wink nod nod"and didn't make us do a POA. I think it helped that we already had a joint checking account. Now everything we have in terms of assets is either in my name or joint and I don't anticipate any other problems.
Amber, as you know, I live in Vancouver, Canada. Yes, I have had problems with the Bank of Montreal and with Royal Bank. And I've had major, major problems with Royal Trust, who were the executor for my husband's estate. This was even though I held Committeeship (guardianship), as appointed by the Supreme Court of British Columbia and had the best lawyer in Vancouver. It was my impression that even my lawyer didn't want to tackle them. There is an ombudsman for banking and financial institutions, and they advised me to write to the CEO of Royal Bank in Toronto, who own Royal Trust. The CEO, in turn, got in touch with a Senior VP of Royal Trust. Things improved dramatically once he intervened, but I email him from time to time with small problems that continue. I think I may soon be able to be finished with them. I hope so. It's almost three years since my husband died. To comment on Crushed's posting: it is my opinion that the financial institutions should be under closer government supervision and accountable. In my experience, I found that the financial institutions misused their power and were overcompensated financially for doing so.
My experience is similar---the banks and brokerage houses prefer their own POAs mainly because otherwise the bankers/brokers have to send the POA to "legal" for approval. And also, the entire issue should be moot with joint accounts. With that said, the one time the brokers refused to honor it, I threatened to move my DH's IRA to another brokerage firm, and suddenly the tune changed, they admitted the POA was legal but just didn't allow the brokers to do certain trades. So be pro-active and sometimes downright mean if necessary.
Also, the morning my house was scheduled to close last fall, the title company called and wanted to speak to my husband to ensure the POA still good, that is, he hadn't revoked it. Once I explained that my husband hadn't spoken in 3 years and was in a nursing home, but by the way, I had had breakfast with him that morning and could state that he was still alive and hadn't revoked the POA, they took my word for it. ( I offered to let them call the nursing home, but I think they decided that was way too much trouble!)
CRUSHED: Please share what state you're located in and the financial institutions involved ...Forewarned in forearmed I'm in FL and wife had pensions from Siemens and IBM and all it took was a phone call the number listed on her documents and I got to the right person within a min. all they required was a copy of death certificate. (The Power of Att dies when the issuer dies, but p rior to her passing the changes we made just required a copy of her DPOA. It's hard to believe but every now and then FL can so something right as long as it doesn't involve counting votes
I had our lawyer certify our POA...I wonder if that helped.
Also from what I learned here and especially what you went through Mary75 with his family, I got him while he was still competent to sign, change everything into my name....mind you because of his business our home has always been in my name. Finances I looked after them for years so there wasn't much to do there. But this journey isn't over so who knows what might pop up.
Our DPOA are notorized by the attorney. I have never had to use them except the VA in Reno wanted to when we went to the ER there. The VA in the Portland/Vancouver area has never asked - I just go in with him.
I have DPOA for my sister registered with their document from each financial place. These are all in Okla. but she now lives in Tenn. She does not have dementia but is 92 yrs. old and not capable now of carrying on her business because of aphasia. She gave me DPOA before she became so impaired. When I call about anything I just begin by telling the person I have DPOA and it is on file in their legal department and go from there. When my dh died I inherited everything as stated in our trust. It all went smoothly for which I am so thankful.
You wrote, "Trusts and DPOA are two totally different animals." Payments I made as Committeeship on behalf of my husband's estate when he was alive were not honored by the Trust Company, the executor, after his death. I had to take them to Small Claims court. I won.
CRUSHED want some fun try Fidelity. Some how my wife's IRA's and KEOH IRA have me listed an the beneficiary in what must have been a pre Alzheimer's mistake she list her DOB not mine. I am now on gthe 2nd set of 15 page double sided forms to retrieve her funds
There was no problem using DPOA with basic bank accounts. The problem seemed to be with investments, IRAs, long term type holdings.
My wife had a small IRA and I was never able to do anything with it using the DPOA. (trying to move it to another fund) After she died it was a different story, all they needed was the death certificate and a few of my signatures.
And yet there was discussion a while back about AD people coming into their stock brokers to make dumb trades that would knowingly lose money. The brokers were saying that there was nothing they could do to stop them because the dementia people had not had their competency revoked. Lots of talk about who might be ultimately responsible and should brokers be allowed/encouraged to stop stupid financial decisions if they suspected dementia. Lots of legal issues on both sides.
I have had trouble with DPOA at Credit Unions and not regular banking institutions. But the bank that I use, I was an employee of for 23 years. I have used the DPOA to get property taxes lowered because of my DH's disability. They had no problem taking it. I have not tried with his pension, we have not had to access it yet. Not until he is 65. The only problem I had was his mom, who is 84, three years ago took him while he was mad and had it revoked. I then took him back and had it reinstated. If there are any problems I have the original from when he was still capable of signing. When she took him he was not capable of signing. I left him with the attorney when I had it reinstated so that it would show that he was on his own signing the new one. It could go to court, but I am sure that mine would hold, after 30 years of marriage. No one else in the family are willing to help me with his care.
I have checked into conservatorship and guardianship and may proceed with that if I have anymore trouble from his mom. She really has issues herself. He felt really bad after she had taken him. We had a doctors appointment the next day, and they asked if we had a will and DPOA. I said we did until yesterday. At that point I know he knew what he had done. It also revoked my being over his Health Care Directive. He did not realize that it had done all that. He had picked a name out of the phone book and just went with her. It was a one line comment with his signature. The attorney asked him no questions as to why he was doing it. It wasn't even on letter head. Our attorney said it was valid. But as I said I had the other reinstated. Who knows what problems I will have with that down the road.
I know trusts and DPOA are different! I was listed as beneficiary on all his IRA's and CDs so with a death certificate they were put in my name. This includes at Vanguard and I had no trouble there. We had a joint bank account which I've left open for a year in case there was any bills due - which there weren't. I had a separate bank account already because my pay checks were direct deposited. My dh studied the Living Trust book until the pages were dog-eared he was so diligent I think nothing was missed. I appreciate his due diligence everyday. He had cancer long before dementia and he wanted everything to be in order when death came so this was all taken care of years before. He was an aero-space engineer and detail was as natural as breathing for him. I'm so sorry for the difficulties others are facing. No one needs more stress than care giving or death puts on them. Some laws and/or rules are so hard to understand and usually the people you are talking with have nothing they can do to change them.
Please forgive me for being a bit pedantic. In my experience people use terms in a variety of different ways, some correct, some not. I have no doubt that "When my dh died I inherited everything as stated in our trust. It all went smoothly for which I am so thankful." A trust allows the trustee to deal with assets as a principal. To be super technical property passing under a properly written trust is not actually "inherited" in many jurisdictions. it is not part of the inheritable estate.
A trust is itself a legal person that acts in its own right. The trustee simply transfers property to the beneficiary. Co-ownership and being a beneficiary under an IRA are likewise different. There is lots of litigation because of conflict between heirs in a will and designated beneficiaries on IRA accounts. Very ugly jackiem29 I know its a pain but you have to do the guardianship before you have more trouble.
Sometimes the benefit of being poor is not having to worry about all that stuff. The only thing to worry about is paying SS back the month payment when he dies - I heard they have to be paid back which is stupid since it is paid after the month it is for like paychecks.
You have to be alive the entire month to earn SS. There are no partial payments. The check you get in February is for being alive all January . You can keep the January check but not February.
Crushed, about a year ago I contacted Vanguard and asked how I could manage DH's accounts. They sent a form granting agent authorization on his accounts. I filled it out and had him sign it. Told him it was so I could talk to Vanguard for him. This past December I called them and was able to move some of his more aggressive funds into cash and more conservative funds. No problems at all. The trick is getting the form signed while he/she can still do it.
MaryinPA. The key is "you had him sign it". What you signed was the vanguard form. unfortunately your method of getting him to sign probably makes it legally invalid if someone objects to your actions. The whole point of a durable power of attorney is that you can act for a person who can't sign. the Maryland statute specifically provides
§17–104. (a) A person may not require an additional or different form of power of attorney for any authority granted in a statutory form power of attorney. (b) A person that refuses in violation of this section to accept an acknowledged statutory form power of attorney is subject to: (1) A court order mandating acceptance of the power of attorney; and (2) Liability for reasonable attorney’s fees and costs incurred in an action or proceeding that confirms the validity of the power of attorney or mandates acceptance of the power of attorney.
§17–105. (a) In this section, “durable power of attorney” means a power of attorney by which a principal designates another as an attorney in fact or agent and the authority is exercisable notwithstanding the principal’s subsequent disability or incapacity. (b) This section applies to all powers of attorney. (c) When a principal designates another as an attorney in fact or agent by a power of attorney in writing, it is a durable power of attorney unless otherwise provided by its terms.
What happens if something happens to the caretaker? Our powers of attorney extend to our children. That is what Vanguard is refusing to recognize despite the statute Lots of other disasters waiting to happen.
"my current worry is making sure our Children can easily exercise the DPOA if anything happens to me."
My lawyer and I both held P.O.A.. My stepchildren took my husband out of his bed at a care facility and to a lawyer, who had never met my husband and didn't question the appearance of a strange 88-year-old man in his office. This new lawyer gave the stepchildren P.O.A., and my step kids promptly cleaned out his bank accounts. I didn't know until my cheques bounced. (Six feet of a six-foot stone retaining wall had come down because of heavy snow: that's why I had a very large amount of money in the chequeing account.) I believe that even with all due diligence, problems can and do arise. We can only do the best we can. In hindsight, I should have moved most of my husband's money into my own chequing account as soon as I got P.O.A. It would have looked bad, though, on my part, if I had done so. As it was, I was squeaky clean when I went to the Supreme Court for guardianship. Because of my experience with trust companies as executors, I have chosen to have my lawyer and my daughter appointed co-executors. There is value, I think, in setting up a balance of power in decision making. I don't think we can make everything perfect. No law is strong enough, if someone chooses to disobey it. I will be forever grateful to those on this site who helped me through this time, not only with legal advice, but with encouragement. These are good topics to discuss here. When we are first overwhelmed with the diagnosis of dementia, we are so busy coping with it, we don't notice the vultures perched on the chandeliers.
@mary75 Anyone anywhere who has family conflict issues has to do a guardianship of some sort.
However I would note that almost all states have a remedy in the case you describe. It is actually one of the most common malpractice suits against attorneys, and a cause for disbarment.
In fact what I wanted to do that set started the whole kerfluffle was to set up a new annuity account for DW. that makes it clear that the money is for DW's support. But Vanguards form will not allow you to set up new accounts. IMHO having your lawyer as executor is ALWAYS a bad idea. ALWAYS. What you do is require the executor to report regularly to the lawyer, who then affirms the actions after determining that the report meets standards. . Are you in the USA or Canada? different terms and different legal concepts.
Crushed, I live in Canada. The lawyer who is my executor is someone I've known for 30-40 years. The use of a lawyer as executor was recommended by two other professionals I've worked when trying to sort out the tangles of the the past few years. Why do you think having my own lawyer is a bad idea? I like to learn. I debated whether to report the lawyer (who gave P.O.A. to the stepkids) to the law society and decided not to: 1) I was super busy, and exhausted, dealing with my husband's dementia. There was also the considerable drain of additional work trying to sort out the legal mess. 2) Yes, I could get him disbarred, but I don't think he will do it again. He got a lot of flak from two lawyers. One lawyer wrote him a letter( I have a copy of that letter), and one lawyer phoned him, and I was in the office when the phone call was made. I could still report him. I have the documentation. Do you think I should? I would really like to have your opinion. As I say, I like to learn.
I can't speak for the law in Canada, but I would report a lawyer who obtained a POA from an incompetent . I normally question the person signing the POA in a confidential environment, and note that on the POA. I had to do this for my own mother and determined that she was competent to make the specific decision she was making.
Normally the lawyer here should serve as counsel to the estate. But on that, legal practices certainly differ
:-) pet peeve -It's FLAK (German for FLieger Abwehr Kannone (anti aircraft gun) Flacks are press agents I did say I'm a Professor! We are hopeless !!
Crushed, you haven't been dealing with dementia in your spouse for long, have you?
Let every one of us who persuaded our spouse to sign the papers was totally convinced of their competence at the time, give a shout out. What?? You didn't hear anything? Amazing!!
I was fortunately my husband had no problems signing the DPOA. Of course he has always be compliment. Lucky that way from many of you who have to fight your spouses every inch of the way.
In 2007 my daughter wanted to buy a house. As her income wasn't high enough and since we were going to live here also, I cosigned the mortgage. The mortgage is in her name and mine; Claude's name wasn't on it. Because Texas is a community property state, he personally had to sign all the papers even tho I had a DPOA. He didn't know what he was signing and just made a scribble where I pointed his signature was to go. The title company didn't bat an eye and notorized his signature without a problem.
@briegull I was my mother's attorney when she had vascular dementia for over 10 years. It was my painful but professional job to determine if she was competent to make various decisions. I was speaking of the obligation of attorneys. Mary described the problem "My stepchildren took my husband out of his bed at a care facility and to a lawyer, who had never met my husband and didn't question the appearance of a strange 88-year-old man in his office. This new lawyer gave the stepchildren P.O.A., and my step kids promptly cleaned out his bank accounts."
The whole point of having a durable POA is that the patient are not signing such papers later. You have the authority to sign
@redbud I am very very sorry but IMHO your action (as described) may have had the effect of exploiting the helpless person for the benefit of your daughter. You put him at financial risk (community property could be liable on the mortgage) without his consent for the benefit of you and the daughter. That is not the same as acting for the exclusive benefit of a helpless person despite evading a competency requirement. I realize you said he would "live there" but that does not change the fundamental issue.
Thank you for answering my questions, Crushed. Also for the correct spelling of flak. Much appreciated. I have corrected the error in my original posting. I am 84, a university student in my fourth year and pay attention when professors take the time to improve my work.
One thing I did when I was rewriting wills, representation agreement..POA was done years ago....was have him go see his regular GP and have him write that he was competent to write a new will and sign rep agreement. Now that he is much further along I again took to see his GP and have him write that he was no long competent to rewrite any of his legal papers. He has step children that I could see doing a Mary75 stunt. I don't know if this will really help but any piece of paper that helps to CMA I'll have.
Amber, I don't know if this info. is of any value to you, but in order to get committeeship, or guardianship, I had to have two doctors examine and sign that my husband was no longer competent to handle his own affairs, financial and physical. One was his family doctor. The other was a specialist that was recognized by the courts (big fee) for an hour-long exam.
Mary -Thanks from the info! I never though about two doctor but I think I have this covered, his geriatric psychiatrist when making his diagnosis said he was no longer competent so I have a second doctor. Everything has been out of his name for soooo long now plus with our federal gov't changing the rules so they can go after your assets to pay for his care I've had to spend down all monies.
Also his care should be covered by veterans affairs but again with our federal gov't making cuts to veterans affairs, closing offices, cutting back on benefits etc...all against the veterans that were injured while in service, they are paying just a very small portion. This is another battle I'm fighting.