Power of Attorney vs Spousal Decision

[Chelley00]

Does someone who holds a power of attorney override a spouse?

Quick background: My dad has a host of medical issues and has bipolar tendencies following a massive stroke. We've actually been mostly estranged and I haven't seen him in years until he called on Christmas to see if he could come over to bring the kids presents on Saturday.

My dad told me over Christmas that he's leaving my stepmom, moving into his own apt Jan 1 and opened a personal bank account, and put my name as a signer so if anything happens to him, I have access to his bank account to pay his bills. He gave me the bank name and account number and told me I need to sign a signature card.

In talking with a banking friend she told me to take my name off the account and get a power of attorney so that if he racks up NSF's on the account and they turn it over to a credit agency, they could come after me as well if I'm listed on the account as a signer. He's never been responsible with money so that is a total possibility.

I doubt he will be able to divorce stepmom, at least not yet, as she is a spender and gives her adult daughter money weekly, so he has no savings. He will be living on VA pension and disability. If I have power of attorney for both medical and financial, will this supercede the decisions she would make as his spouse?

(we get free legal work after Jan 1st through my husband's employer, but I'd like to have an idea of what to expect now) Thanks fo any advice

 

[tazdev3225]

I'm not really sure but personally I would think a POA would override the spouse. I agree with your friend don't have your name on anything that can adversely effect you. I had a POA on friends years ago and was able to use that to deal with banking issues. If I recall I also needed a medical clause in it so that I could make the decisions instead of the sisters on each other. I hope that makews sense. Good luck and talk to an attorney as soon as you can to get the correct legal advice for your state.

 

[turkeymama]

Does someone who holds a power of attorney override a spouse?

Quick background: My dad has a host of medical issues and has bipolar tendencies following a massive stroke. We've actually been mostly estranged and I haven't seen him in years until he called on Christmas to see if he could come over to bring the kids presents on Saturday.

My dad told me over Christmas that he's leaving my stepmom, moving into his own apt Jan 1 and opened a personal bank account, and put my name as a signer so if anything happens to him, I have access to his bank account to pay his bills. He gave me the bank name and account number and told me I need to sign a signature card.

In talking with a banking friend she told me to take my name off the account and get a power of attorney so that if he racks up NSF's on the account and they turn it over to a credit agency, they could come after me as well if I'm listed on the account as a signer. He's never been responsible with money so that is a total possibility.

I doubt he will be able to divorce stepmom, at least not yet, as she is a spender and gives her adult daughter money weekly, so he has no savings. He will be living on VA pension and disability. If I have power of attorney for both medical and financial, will this supercede the decisions she would make as his spouse?

(we get free legal work after Jan 1st through my husband's employer, but I'd like to have an idea of what to expect now) Thanks fo any advice

I'm guessing much of this will depend on the state they reside in, as far as whether or not the POA would supercede as spouse's decisions. But your banking friend is absolutely correct that you would share responsibility of the account if your name is on it. However, many people aren't 100% familiar with POAs so you will likely always have it scrutinized if you conduct transactions on his behalf. No big deal, but many people aren't prepared for that aspect of it.

 

[Tink888]

As others have said you do not want your name on any of his accounts. The power of attorney listing you as attorney-in-fact would allow you to conduct transactions on his behalf. The POA would override the spouse pertaining to accounts/assets that are held solely in your Dad's name.

As far as medical issues, when you speak with an attorney regarding the POA, you might also want to look into having a Living Will drawn up for your father as well. This would specify not only his wishes medically but also appoint a person to make those decisions on his behalf.

 

[1957]

As others have said you do not want your name on any of his accounts. The power of attorney listing you as attorney-in-fact would allow you to conduct transactions on his behalf. The POA would override the spouse pertaining to accounts/assets that are held solely in your Dad's name.

As far as medical issues, when you speak with an attorney regarding the POA, you might also want to look into having a Living Will drawn up for your father as well. This would specify not only his wishes medically but also appoint a person to make those decisions on his behalf.

Excellent advice!

 

[LuvOrlando]

I think Power of Attorney over-rides the power of a spouse because a family member of mine relinquished Power of Attorney to his wife because of mental illness. I would think that if the status of Spouse was above POA they wouldn't have gone through the trouble since she already held that position for 25 years before the POA.

I agree to get your name off everything ASAP. Since your Dad is married to her he is contractually obligated to assume all her debts. Whether you realize it or not, by accepting a contractual obligation to share his debts you entered into a contract with his wife as well. I would call the bank ASAP and get off of there. Also, I think there may be a question of legality with trying to hide assets from his wife. Careful, you guys need a lawyer. Check out the Legal Aid Society in your area and get him help, a lawyer might be able to divide the assets legally way before divorce has to happen.

 

[ZPT1022]

In my state at least, POA overrides spousal privileges, which is why when I was undergoing major surgery and issues I took out a POA and gave DH that power. His mother is an attorney and thought that was a good idea.

Also, be aware that medical and financial POA's are completely different things.

 

[sbell111]

You definitely need to check this with a local attorney, but I don't think that a POA would 'override' a spouse. It would allow the holder to make decisions for the individual, but it would not remove any authority that a spouse legally holds, in my opinion.

 

[barkley]

you need to consult an attny b/c having a p.o.a. only gives you the right to act as person would on their own (or as an attorney would on their behalf)-it does'nt override someone elses existing legal rights (we've had p.o.a.'s on married family members-it did'nt diminish either spouse's individual rights towards their spouse).


since we are going thru a poa issue with a family member right now i'll offer a word of advice-check with the vet's administration to see if they have a special poa form. we've found with certain gov. based pension sources even the most perfectly executed poa has to be reviewed by their legal staff and can take upwards of 6 months to be formaly accepted and filed, while if you use their pre-printed form (often downloadable from their website) it can cut the processing time down to 45 days.

if he has medical issues you will want to get a separate document for this purpose that specificaly speaks to what decisions you can make for him and what his wishes are re. advance directives. even to get medical or insurance information this is more of a requirement vs. a poa (hiipa laws and all).

remember that the p.o.a. expires on death, so if he would want you to make any decisions re. his final arrangements or 'estate' he would need to put this in writing as well.

i would STRONGLY suggest using an expert elder law attny. with the medical/psych. issues your dad has, unless an expert knowledgable in the field were to construct and prepare the documents they could be called into question (weather your father was competant at the time he signed to make those decisions). i'de also suggest that unless you (or he) wants to spend the money to draw these up only to have him change his mind, then change his mind back again over and over (somewhat a familiar habit with the bi-polars i've known) to greater repeated expense, you consider only doing it if the documents are durable and irrevocable. that way they are in place for good, but if periods of time come up when you don't need or want to use them they just sit unenacted (lots of older people have durable irrevocable poa's with their adult kids, they trust that the kids won't enact them unless they request them to do so or need for them to).

 

[PrincessV]

Former bank manager here...

POA allows you to act on his behalf. However, it becomes null and void in the event of death. So if the goal is to conduct banking on his behalf while he is living, but is perhaps injured or mentally incapacitated (and that has to be written into the POA), and the spouse is not listed on the account, then yes, you would have access to the account and she would not.

If the goal is for the account to go to you in the event of his death, you must be listed as a beneficiary on the account, as POA will cease. Being a beneficiary does not hold you liable in any way for NSF's, etc.

 

[golfgal]

Former bank manager here...

POA allows you to act on his behalf. However, it becomes null and void in the event of death. So if the goal is to conduct banking on his behalf while he is living, but is perhaps injured or mentally incapacitated (and that has to be written into the POA), and the spouse is not listed on the account, then yes, you would have access to the account and she would not.

If the goal is for the account to go to you in the event of his death, you must be listed as a beneficiary on the account, as POA will cease. Being a beneficiary does not hold you liable in any way for NSF's, etc.

I was going to post the same thing. While you are setting up the POA also get a will and a trust set up so his property and assets can transfer easily. As it stands, depending on your state, the step-mom may get everything right now, not that there is much but there might be money coming from the pension and if there is a house, etc.--you won't get anything. You need a GOOD estate planning attorney NOW.

 

[Chelley00]

Thanks, everyone. It's been helpful in making my list of things to talk to our attorney about. We'll use the same one who drew up our personal wills, living wills etc last year. It's just nice to go into it knowing what I'll need, and what to try and convince my dad to do. Sounds like the first thing is to go to the bank and make sure my name is off the account, which bothers me he could put it on there without my permission

There isn't much money for either of them, he was just concerned if he had another stroke or something that his car payment or rent wouldn't get paid and that's all he was wanting me to have access to. I'm going to have to sit call him this weekend and tell him the things my research have found.

I really appreciate all the help, ideas and advice!!!

 

[ZPT1022]

Thanks, everyone. It's been helpful in making my list of things to talk to our attorney about. We'll use the same one who drew up our personal wills, living wills etc last year. It's just nice to go into it knowing what I'll need, and what to try and convince my dad to do. Sounds like the first thing is to go to the bank and make sure my name is off the account, which bothers me he could put it on there without my permission

There isn't much money for either of them, he was just concerned if he had another stroke or something that his car payment or rent wouldn't get paid and that's all he was wanting me to have access to. I'm going to have to sit call him this weekend and tell him the things my research have found.

I really appreciate all the help, ideas and advice!!!

I don't think your name is officially on the account until you sign that signature card- it's a two part process, the current account holder has to fill some stuff out and/or go in to the branch and speak to someone to add a person, and then the person being added needs to sign to officially add themselves. I know this because DH started an account at an employee credit union and this is what we had to go through later to add me to the account. I don't think that is credit union specific either as we went through the same process to add DH to an account I held prior to us joining our accounts