Helping a parent or spouse out with his or her banking is not as easy as it seems. For those living on the sunny side of the street, it might be simply getting a power of attorney that appoints you to handle his/her financial affairs or even getting a joint account. But because these have become tools for financial abuse, banks are justifiably wary. Unfortunately, bank branches do not have uniform protocols so your experience at your local branch could differ dramatically from your neighbours’.
The usual purpose of a power of attorney is to allow a person’s affairs to be managed by someone else [the “attorney”] when that person [the “grantor”] is mentally incompetent to handle them him or herself. The document can also provide that the attorney can act when it is merely inconvenient for the grantor to handle his/her own property – such as a person who lives part of the year abroad.
However, the power of attorney carries significant legal ramifications for both parties and should not be used lightly. It might seem handy when parent or spouse is mentally competent but what happens if she/he has a stroke? It might seem necessary to control the parent or spouse’s access to their bank accounts because they keep falling prey to unscrupulous salesmen. But what rights does the parent or spouse continue to have even if there is a power of attorney? What should you do?
Here is some advice to keep in mind as you grapple with these issues: [we are grateful to Jan Goddard of Jan Goddard & Associates, Lawyers for her advice and input]
1. who owns the account – most think a joint account is simple and convenient but legally it means that both the grantor and attorney own the money in the account; to avoid confusion or allegations of misappropriation, the account should remain in the name of the grantor or in trust for the grantor, with the attorney being given signing authority on the account
2. limited electronic access for your own good – the attorney can pay regular bills by electronic transfer of funds but must handle deposits and withdrawals in person – inconvenient but creates an important paper trail: the attorney must show what he/she has done with the account and keep clear records
3. grantor has right to access account unless proven incompetent – which requires proof such as his/her doctor’s written opinion stating that he/she is incapable of managing his/her property. In some contentious cases a full capacity assessment may be needed to satisfy everyone, including the grantor. A good middle ground is a bank account with limited funds which would help preserve his/her dignity while limiting the risks.
All this just deals with bank accounts. There are other issues concerning investments, retirement homes and nursing homes that will be covered in future articles in this series.