We have durable power of attorney for my MIL, and my husband is a joint owner on her account at Bank of America. We did not go into BOA and have their own in-house power of attorney drawn up, thinking it was not needed. At the time we did POA, MIL was happy to sign.
We recently had to put MIL in a care home, she did not want to go, she has dementia (and other issues), is paranoid about everything. There's no way we could get her in to the bank to sign their internal POA now.
We need to endorse a check as her POA, but it sounds like we couldn't do this at BOA without having their internal power of attorney. I could call or set up an appointment to give them our POA and a letter we have from her neurologist saying she does not have the capacity to make her own decisions.
BUT I'm afraid I open up a can of worms if we look into this with BOA. Maybe they still won't take it, maybe they will require something we can't provide. What if they don't accept the POA we have, and lock her account once we show them the letter of incapacity and let them know we're handling her affairs?
What will BOA do if we let them know we are now acting as POA and she is incapacitated? What other options do we have?
FYI, this is all because we are selling MIL's car. She has said she wants to own that until she dies, even though she hasn't driven in 3 years. It's over $2K insurance every year, plus maintenance, plus a hassle for us to make sure to drive it ourselves enough that it doesn't sit there and rot (and we already had to pay to replace the battery once because we let it sit too long). AND her driver's license expires soon, and there's no way they'll renew it.
The car is in her name and my husband's - the dealership will let him sign as POA to sell it, BUT the check will be made out to both of them. We don't want to take it to her to sign if we don't have to -- we had planned on telling her the car was parked at our house safe and sound to avoid distress (and a meltdown). She hasn't been in the facility long and is still in a very upset state, demanding to be taken home. We don't want to add having to tell her we sold her car, which we'll have to do if she signs that check. I'm also a little worried she'd just rip the check up, and then what do we do? Her insurance has to be renewed in a couple of weeks, and we'd wanted to sell the car before then to avoid further needless expense.
The POA itself spells out exactly what the POA can do and exactly what is needed to enact it. (usually TWO letters from MD attesting to incompetency of the principle who made the POA appointment).
Banks are VERY protective of their depositors money as should well be the case. First of all, any elder could fail and have the young ones come in with some document pulled of the internet.
Read your POA. How many MDs must diagnose your mom incompetent in her own decisions?????
Has that been DONE?
Was the POA put on the account as POA. Does the POA currently pay all bills as POA.
Any bank worth its name will have their own attorneys read, make copies and document their satisfaction with the POA as written. That is normal (and good) practice.
If it isn't well written then you need guardianship procedings because it is worthless.
That is a court procedure and you need an elder law attorney to walk you through.
AGAIN you need PROOF of mom's incompetency.
This needs to be done. Playing around with his name on and her name on is melding funds. Not good. For taxes, for Medicaid if ever needed, for ANYTHING--not good.
When the IRS ever needs to check they cannot tell whose funds these are.
This is a legal matter and if you are uncertain how to do POA please research and see an attorney. By the way, the POA is paid or reimbursed for attorney fees.
Be certain you understand that once you undertake POA one person, the POA or the Principle handles the money. Because one POA AND an incompetent senior keeping records would be a nightmare mess.
You, when you are POA, are responsible for PROOF of every penny into and every one out of your mom's accounts.
Good luck. I did this and it is at least a one year learning curve that was anxiety provoking and tough. But I am GLAD I learned all I learned.
A financial institution might raise objections such as these:
- Your POA isn't durable.
If the person who made the POA is now incapacitated, the agent can't use the POA unless it's durable—that is, made to last even during incapacitation. In some states, POAs are durable by default, but in other states, the document must include an explicit statement. If the POA isn't durable, and you're an agent trying to help someone who's incapacitated, unfortunately you won't be able to use that POA. You can consult an attorney to explore other options.
- Your POA is "springing" but you haven't demonstrated incapacitation.
Some POAs are made to be "springing"—meaning that they don't take effect until In this case, the POA usually sets out the procedure for proving that the POA maker is now incapacitated. For example, someone, usually a doctor, might need to certify that you're no longer able to make your own financial decisions. Third parties like financial institutions will take these procedures very seriously, with good reason. But the potential for logistical problems is high. For this reason, a springing power of attorney is not usually recommended.
- Your POA is old, or is not on the bank's POA form.
Banks might also have less defendable reasons for rejecting your POA. You might occasionally hear that the POA was made too long ago, or does not conform to the bank's own POA form."
Source: https://www.nolo.com/legal-encyclopedia/can-banks-refuse-a-power-of-attorney.html#:~:text=Common%20Reasons%20Why%20Banks%20Won,to%20last%20even%20during%20incapacitation.
I am PoA for my Aunt living in FL. All 3 of her banks required me to go through their own PoA process (WF, BoA, TDA). They all had different requirements: one made me bring my 100+ yr old Aunt in person; one accepted just her ID; one didn't require any of that but made me do their own paperwork. Each one required I bring in my PoA paperwork.
A visit to an attorney is in order if they do not.
But the enacting of the POA is a job done with a bank officer. It involved a whole lot of work on the account to make it right.
Their bank would not accept it. It wasn’t that I was withdrawing their money, just wanted 5 years of her bank records for my mothers Medicaid application. They wouldn’t give it to me.they needed my sisters authorization.
I actually signed some documents at the lawyers office because he said I coujd.
I really don’t know what’s up with this. when I go back to NYC in a few weeks I will address this with the attorney. I’m not that concerned so long as my sister is available.
That said, Alva's advice is good. Adding DH to his mother's accounts as joint both helped and hurt in different ways. It is a matter of picking your pain when it comes to mixing financials.
If you're just looking to just deposit it - both names on the check AND both names on the account - just write "for deposit only" on the back of the check. It shouldn't be a problem whatsoever.
I'm on both of my kids' bank accounts and have deposited checks for them while they are/were away at college without them signing the back of the checks, it was never, ever questioned at either bank used.
As I said, I've deposited checks for my kids, including their tax refunds, which are guaranteed funds, without their signatures on the back. It was never a problem. The only time it would be a problem would be if I was trying to deposit a check made out to them into an account with only my name on it without a signature on the back.
My Moms POA was immediate. Bank took the original and copied it. Never had a problem with them. If it was me, and they were not accommodating, I would pull all Moms money out and set up accts at another bank.
MIL will run out of money before 5 years have passed, and moving it could affect the Medicaid look back period. We'd also then have to move her social security payments to a new bank as well, not sure how complex that would be.
The durable POA does not require any letter from a doctor in order to activate it (though we do have one letter of incapacity from a doctor). My husband is a joint owner on her bank account as well.
This doesn't work out in many cases. "Theoretically" one should be able to. But that doesn't help when it doesn't work and it is too late.
Problem is when you have a notary public witness signatures that is ALL they are doing. They are witnessing a signature.
A solid lawyer-written POA does so much more. Examines the person doing the POA to be certain they are competent, and interviews them and individualizes it. And gets it signed. They stake their attorney's license on your documents legitimacy.
A MPOA or health care POA is miniscule in so far as what it does and who accepts it. It bears no resemblance to financial POA which gives you access to everything your loved one has, including the ability to sell his or her property if so written.
A Financial POA puts the assets of a citizen in the hands of another citizen. It must be a good, solid, legal and meticulous document.
As I said below, a bank is going to be very iffy about someone swooping in to say "Gee, mom is ill now so let's let ME have all her money to do as I wish with".
I would caution people for THIS reason: Once an elder becomes too incompetent to do a POA with an attorney it is too late. You cannot get a POA. Your opportunity to protect your elder and do it right, registering everywhere as their POA is gone. You need a POA that every banker's attorney will pass on and say "Wow! GOOD ONE".
Get the attorney. You will definitely pay for this. But you will pay more if you have to go through the court system and get a guardianship.
(Pro tip: Never title a vehicle in two people's names with AND, even married couples, unless you don't trust your spouse. It can be a nightmare to sell if one or the other person isn't around to sign the title.)
Does your husband have online banking with BoA? Honestly, I'd just sign it with his signature and hers (plus "as POA"), deposit it, and see if they flag it. They may not.
Banks aren't as touchy about taking deposits -- it's the withdrawals that freak them out. They'll put a hold on any large check regardless of whether a POA signature is involved. If this one goes through and they give you a hard time at another time, you can always bring to their attention that they've accepted the POA already in the past. Tell them you're happy to bring in a copy for them and just make it really clear that it's active, they've already accepted it and your MIL is no longer competent to sign anything for them.
All that said, however, banks are notoriously obnoxious about accepting Powers of Attorney, and they want their paperwork, not yours. This is a good warning to others that when you get POA for a loved one, you also need to take them to their banks and other financial institutions and do theirs as well. My dad took me to Charles Schwab himself, told them he was placing me in charge of his finances, handed over the POA, filled out their paperwork, and it STILL took three months for them to give me control of his accounts. Dad had been gone for 2 1/2 of those three months, and had the stock market crashed with me unable to make any financial decisions, there'd have been hell to pay. Fortunately, that didn't happen.
Final point -- BofA is a TERRIBLE bank. My husband set up all our business accounts there, and their level of incompetency is absolutely breathtaking, regardless of the branch. This will be changed soon, thank goodness, when we move the accounts to a smaller, local business bank.
I’ve been on this forum a ,long time and BoA has had more than a few post on this. They are basically hostile to doing anything without either you having an account (with a balance over the amount of your elders account) there to move the funds into OR a court ordered legal document. Like Letters Testamentary from a Judge if elder has died so that you are now the Executor so legally have the power and a fresh federally issued IRS tax ID to move the money to a different bank account…. And even then they will foot drag and charge an account closure fee and certified check fee. They are the worst. ((The fabulous GardenArtist posted a few times on her BoA travails she dealt with after her Sister died (Sis had a BOA) and GA was a beyond savvy paralegal and a EA for a top white shoe law firm in Michigan and knows her stuff and BoA tried to pull this on her; I don’t know if her old post are still up on this forum.))
Also, regarding selling the car can they just send the money to her bank account? I has her name on it. I signed checks for my daddy I just signed his name on the back then put power of attorney on it. This should work. I have never worked with BOA. But this is how I dealt with Wells Fargo.
I would question why BOA would want your husband to take their POA when he already has a signed POA from his mother. I once had BOA but I have since changed bank and I did not know that they have in-house POA. I only use my bank’s in-house notary public if I have documents that need to be notarized since it’s free.
Most tellers don't even look at the check if you sign it in front of them, not at BofA anyway.
As for any deposits, don't sign the checks, write for deposit only and deposit them in the joint account.
I wouldn't tell the bank anything, it's a moot point. Your husband has ALL the authority he needs being a joint account holder. He can do everything that needs doing. Remember, never Co mingle your funds with moms, that's where it can become problematic in the future.
My dad banked at BofA and I am speaking from actual events.
A suggestion would be to put at least 3 names on the title with right of survivorship. If any one of the 3 dies, the car goes to one of the people named, if two die, the third gets the car.
My father has Bank of America and I had to go through everything as described above.
Good luck to you.
I have not dealt with them for more than a decade.
As a convenience, Bank of America customers, in most states, may establish a Limited Power of Attorney for banking transactions by contacting your local financial center. However, your personal attorney can provide you with a General Power of Attorney form, which may cover many types of assets and transactions."
Disclaimer: Not my authoring.