Finding out your Power of Attorney is useless

Non-investing personal finance issues including insurance, credit, real estate, taxes, employment and legal issues such as trusts and wills.
Topic Author
Fremdon Ferndock
Posts: 1181
Joined: Fri Dec 24, 2021 11:26 am

Re: Finding out your Power of Attorney is useless

Post by Fremdon Ferndock »

galawdawg wrote: Thu Jun 16, 2022 10:52 am
Fremdon Ferndock wrote: Thu Jun 16, 2022 10:47 am I'm on chat with Schwab and this is what they're telling me. I'm trying to find out more:
Good question and with a new account at Schwab, we would need to have our Schwab POA form on file, along with your attorney prepared POA (for example, some clients have a Durable Power of Attorney request which they submit along with a Schwab POA form)
They may be talking about this form: https://www.schwab.com/resource/attorne ... ey-in-fact. That provides Schwab the information on your agent.

This information is in the FAQ portion of my Schwab information thread: viewtopic.php?t=355173
Thanks for these references. I see that the affidavit document is to be completed by your "agent" aka primary POA, an individual. What if I have multiple POAs or wish to name contingent POAs? We keep getting back to the limitation that only one "agent" is recognized. What if my "agent" croaks and I need someone else to act as agent? Do I then have to go through the process all over again? What if I'm non compos mentis? That's what I'm trying to avoid with my own DPOA. I guess I'm confused. I would expect that as the account holder I could submit my attorney DPOA for my account and that would be it. The company then confirms whether or not they accept my DPOA.
"Risk is what’s left over when you think you’ve thought of everything." ~ Morgan Housel
User avatar
Lee_WSP
Posts: 10401
Joined: Fri Apr 19, 2019 5:15 pm
Location: Arizona

Re: Finding out your Power of Attorney is useless

Post by Lee_WSP »

The easiest way to deal with recalcitrant firms is to transfer the account to a different one. The new institution is usually able to simply pull the funds.

But you should still submit a CFPB complaint.
User avatar
galawdawg
Posts: 5231
Joined: Thu Dec 14, 2017 11:59 am
Location: Georgia

Re: Finding out your Power of Attorney is useless

Post by galawdawg »

Fremdon Ferndock wrote: Thu Jun 16, 2022 11:18 am
galawdawg wrote: Thu Jun 16, 2022 10:52 am
Fremdon Ferndock wrote: Thu Jun 16, 2022 10:47 am I'm on chat with Schwab and this is what they're telling me. I'm trying to find out more:
Good question and with a new account at Schwab, we would need to have our Schwab POA form on file, along with your attorney prepared POA (for example, some clients have a Durable Power of Attorney request which they submit along with a Schwab POA form)
They may be talking about this form: https://www.schwab.com/resource/attorne ... ey-in-fact. That provides Schwab the information on your agent.

This information is in the FAQ portion of my Schwab information thread: viewtopic.php?t=355173
Thanks for these references. I see that the affidavit document is to be completed by your "agent" aka primary POA, an individual. What if I have multiple POAs or wish to name contingent POAs? We keep getting back to the limitation that only one "agent" is recognized. What if my "agent" croaks and I need someone else to act as agent? Do I then have to go through the process all over again? What if I'm non compos mentis? That's what I'm trying to avoid with my own DPOA. I guess I'm confused. I would expect that as the account holder I could submit my attorney DPOA for my account and that would be it. The company then confirms whether or not they accept my DPOA.
Yes, that is pretty much it. You would submit your attorney-prepared DPOA to Schwab for approval. Your agent would complete the agent form and submit it. You don't want to have more than one agent at any single time. If the first agent is unable or unwilling to serve, it should be a simple matter for Schwab to be notified of such and the successor agent to submit the agent form.

Again, a Schwab financial consultant will be able to help with that. They may need to "kick it up the chain" to their legal folks, but it should work out. And in my experience, if Schwab can't work it out for you, no brokerage can.
User avatar
galawdawg
Posts: 5231
Joined: Thu Dec 14, 2017 11:59 am
Location: Georgia

Re: Finding out your Power of Attorney is useless

Post by galawdawg »

Lee_WSP wrote: Thu Jun 16, 2022 11:22 am The easiest way to deal with recalcitrant firms is to transfer the account to a different one. The new institution is usually able to simply pull the funds.
Agree.
Lee_WSP wrote: Thu Jun 16, 2022 11:22 am But you should still submit a CFPB complaint.
Wouldn't that be FINRA? I don't think investment brokerages are subject to CFPB supervisory or oversight authority.
Topic Author
Fremdon Ferndock
Posts: 1181
Joined: Fri Dec 24, 2021 11:26 am

Re: Finding out your Power of Attorney is useless

Post by Fremdon Ferndock »

galawdawg wrote: Thu Jun 16, 2022 11:26 am
Fremdon Ferndock wrote: Thu Jun 16, 2022 11:18 am
galawdawg wrote: Thu Jun 16, 2022 10:52 am
Fremdon Ferndock wrote: Thu Jun 16, 2022 10:47 am I'm on chat with Schwab and this is what they're telling me. I'm trying to find out more:
Good question and with a new account at Schwab, we would need to have our Schwab POA form on file, along with your attorney prepared POA (for example, some clients have a Durable Power of Attorney request which they submit along with a Schwab POA form)
They may be talking about this form: https://www.schwab.com/resource/attorne ... ey-in-fact. That provides Schwab the information on your agent.

This information is in the FAQ portion of my Schwab information thread: viewtopic.php?t=355173
Thanks for these references. I see that the affidavit document is to be completed by your "agent" aka primary POA, an individual. What if I have multiple POAs or wish to name contingent POAs? We keep getting back to the limitation that only one "agent" is recognized. What if my "agent" croaks and I need someone else to act as agent? Do I then have to go through the process all over again? What if I'm non compos mentis? That's what I'm trying to avoid with my own DPOA. I guess I'm confused. I would expect that as the account holder I could submit my attorney DPOA for my account and that would be it. The company then confirms whether or not they accept my DPOA.
Yes, that is pretty much it. You would submit your attorney-prepared DPOA to Schwab for approval. Your agent would complete the agent form and submit it. You don't want to have more than one agent at any single time. If the first agent is unable or unwilling to serve, it should be a simple matter for Schwab to be notified of such and the successor agent to submit the agent form.

Again, a Schwab financial consultant will be able to help with that. They may need to "kick it up the chain" to their legal folks, but it should work out. And in my experience, if Schwab can't work it out for you, no brokerage can.
Thanks for your advice. It does appear to me that it should work as you describe; I guess the attorney-prepared DPOA and the agent form could be submitted together? Why would there be any need to also complete the Schwab in-house POA form, as the Schwab chat consultant described? That would seem to be redundant with the agent form.
"Risk is what’s left over when you think you’ve thought of everything." ~ Morgan Housel
User avatar
galawdawg
Posts: 5231
Joined: Thu Dec 14, 2017 11:59 am
Location: Georgia

Re: Finding out your Power of Attorney is useless

Post by galawdawg »

Fremdon Ferndock wrote: Thu Jun 16, 2022 11:44 am Why would there be any need to also complete the Schwab in-house POA form, as the Schwab chat consultant described? That would seem to be redundant with the agent form.
There shouldn't be. The Schwab financial consultant that you decide to work with should be able to answer that.
Topic Author
Fremdon Ferndock
Posts: 1181
Joined: Fri Dec 24, 2021 11:26 am

Re: Finding out your Power of Attorney is useless

Post by Fremdon Ferndock »

galawdawg wrote: Thu Jun 16, 2022 11:51 am
Fremdon Ferndock wrote: Thu Jun 16, 2022 11:44 am Why would there be any need to also complete the Schwab in-house POA form, as the Schwab chat consultant described? That would seem to be redundant with the agent form.
There shouldn't be. The Schwab financial consultant that you decide to work with should be able to answer that.
I plan to visit the nearest Schwab office to discuss all this in person in the next few days. Sounding like a better alternative to Vanguard, which seems unyielding on POAs. My primary concern with the Vanguard in-house POA or "agent" authorization form is that it's not really a durable POA. If I become incapacitated and my "agent" is unable to serve there's no way another agent can step in because I would be unable to appoint one. Major flaw. Someone concerned about this as much as I am really seems to have no choice but to take his account somewhere else. Been with Vanguard many years but it's probably time.
"Risk is what’s left over when you think you’ve thought of everything." ~ Morgan Housel
User avatar
ResearchMed
Posts: 16795
Joined: Fri Dec 26, 2008 10:25 pm

Re: Finding out your Power of Attorney is useless

Post by ResearchMed »

galawdawg wrote: Thu Jun 16, 2022 11:51 am
Fremdon Ferndock wrote: Thu Jun 16, 2022 11:44 am Why would there be any need to also complete the Schwab in-house POA form, as the Schwab chat consultant described? That would seem to be redundant with the agent form.
There shouldn't be. The Schwab financial consultant that you decide to work with should be able to answer that.
That Schwab form is not durable.

What happens if someone has their own DPOA filed with Schwab. In at least some cases, the fact that the POA is durable is a key feature? They specifically want someone they've selected to be able to manage their affairs when they become unable to do so.

RM
This signature is a placebo. You are in the control group.
johnnyc321
Posts: 164
Joined: Wed Jan 04, 2017 8:24 pm

Re: Finding out your Power of Attorney is useless

Post by johnnyc321 »

If the power of attorney is valid, sue them. In Florida (and likely most other places) the bank/institution will get the prize of paying your attorneys' fees and costs.
RetiredAL
Posts: 3537
Joined: Tue Jun 06, 2017 12:09 am
Location: SF Bay Area

Re: Finding out your Power of Attorney is useless

Post by RetiredAL »

ResearchMed wrote: Thu Jun 16, 2022 11:02 am
Is Schwab's POA not Durable?
Schwab has two distinct POA processes. They use different forms.

1. The simple process use their internal POA form, but it is not Durable. It's a simple clerical level paperwork submission. The signed form can uploaded. My experiences has been it's a 2 day or less process. They expect the agent to notify them upon the owner's incapacitation.

2. The more complex process uses a different form AND submits an external POA. It is Durable if the external is Durable.
The external can be submitted by the POA, using the POA's powers, including opening an account, thus it can be done when the owner already is incapacitated. Schwab will review and approve, and I was told it could take a week. I suspect this flows through their legal department. All the paperwork can be uploaded.

If you have a Schwab Office locally, their staff will assist you, do the notarization, copy any needed paperwork, and submit it for you.

The above steps were from 3 years ago.

Mr LawDawg has done an excellent thread on Schwab stuff, including POA.
Last edited by RetiredAL on Thu Jun 16, 2022 12:20 pm, edited 1 time in total.
User avatar
Lee_WSP
Posts: 10401
Joined: Fri Apr 19, 2019 5:15 pm
Location: Arizona

Re: Finding out your Power of Attorney is useless

Post by Lee_WSP »

galawdawg wrote: Thu Jun 16, 2022 11:31 am
Lee_WSP wrote: Thu Jun 16, 2022 11:22 am But you should still submit a CFPB complaint.
Wouldn't that be FINRA? I don't think investment brokerages are subject to CFPB supervisory or oversight authority.
Not entirely sure on that one, I just know that the CFPB purportedly gets traction according to other lawyers who have used the tactic.
johnnyc321
Posts: 164
Joined: Wed Jan 04, 2017 8:24 pm

Re: Finding out your Power of Attorney is useless

Post by johnnyc321 »

ResearchMed wrote: Thu Jun 16, 2022 12:12 pm
galawdawg wrote: Thu Jun 16, 2022 11:51 am
Fremdon Ferndock wrote: Thu Jun 16, 2022 11:44 am Why would there be any need to also complete the Schwab in-house POA form, as the Schwab chat consultant described? That would seem to be redundant with the agent form.
There shouldn't be. The Schwab financial consultant that you decide to work with should be able to answer that.
That Schwab form is not durable.

What happens if someone has their own DPOA filed with Schwab. In at least some cases, the fact that the POA is durable is a key feature? They specifically want someone they've selected to be able to manage their affairs when they become unable to do so.

RM
I just reviewed the Schwab power of attorney form. It has no lines for witness signatures so it will not be valid under the law of most states. The notary section also does not comply with Florida law.
afan
Posts: 8193
Joined: Sun Jul 25, 2010 4:01 pm

Re: Finding out your Power of Attorney is useless

Post by afan »

We set up DPOAs when we first did our estate planning years ago. At the time, our attorney told us that it is difficult to get institutions to accept springing powers. They are afraid of being held responsible for ensuring that the conditions required for the power to spring have been satisfied. With a durable power, the attorney said, do not put the institution in that position so they are more likely to accept them.

When we finally needed to use a DPOA on behalf of an elderly person, we discovered that none of the institutions would accept a perfectly valid DPOA. They would not even look at it. Ultimately we simply transferred all assets to one brokerage, under the RLT the person had set up years before. There was never any problem with having us act as trustees of the RLT.

We have our taxable assets in RLTs to avoid this problem.
We did the Vanguard agent forms but this reminds me to go after them again about DPOAs.
I assume it is true that one could force them to comply with Pennsylvania law. I also assume that this would be expensive and time consuming.
Disappointing to hear that someone had a recent experience with the same issue.
We don't know how to beat the market on a risk-adjusted basis, and we don't know anyone that does know either | --Swedroe | We assume that markets are efficient, that prices are right | --Fama
Topic Author
Fremdon Ferndock
Posts: 1181
Joined: Fri Dec 24, 2021 11:26 am

Re: Finding out your Power of Attorney is useless

Post by Fremdon Ferndock »

RetiredAL wrote: Thu Jun 16, 2022 12:18 pm
ResearchMed wrote: Thu Jun 16, 2022 11:02 am
Is Schwab's POA not Durable?
Schwab has two distinct POA processes. They use different forms.

1. The simple process use their internal POA form, but it is not Durable. It's a simple clerical level paperwork submission. The signed form can uploaded. My experiences has been it's a 2 day or less process. They expect the agent to notify them upon the owner's incapacitation.

2. The more complex process uses a different form AND submits an external POA. It is Durable if the external is Durable.
The external can be submitted by the POA, using the POA's powers, including opening an account, thus it can be done when the owner already is incapacitated. Schwab will review and approve, and I was told it could take a week. I suspect this flows through their legal department. All the paperwork can be uploaded.

If you have a Schwab Office locally, their staff will assist you, do the notarization, copy any needed paperwork, and submit it for you.

The above steps were from 3 years ago.

Mr LawDawg has done an excellent thread on Schwab stuff, including POA.
Thanks for that information. Confirms that I want to submit my DPOA with the agent affidavit form in order to have that in force. Don't want the Schwab form. My understanding to this point is that if my primary POA is unable to serve, then my contingent POA would just need to submit a new agent affidavit form.

One remaining issue that occurred to me is that my DPOA names two individuals as contingents to serve jointly. I don't see any provision for that in the agent affidavit, or perhaps each contingent could both submit agent affidavits to allow this?
"Risk is what’s left over when you think you’ve thought of everything." ~ Morgan Housel
HomeStretch
Posts: 11419
Joined: Thu Dec 27, 2018 2:06 pm

Re: Finding out your Power of Attorney is useless

Post by HomeStretch »

Fremdon Ferndock wrote: Thu Jun 16, 2022 7:25 am Is the consensus here that Fidelity and Schwab have been OK accepting attorney-drafted DPOAs? Has anyone experienced any difficulties with either of them in this regard? I'd be willing to move my accounts to either one from Vanguard if I were sure I my DPOA would be acceptable there.
Fidelity accepted my attorney-drafted DPOA. A form to accompany the DPOA submission was required - signed and notarized. A local office notarized the form and took receipt of the DPOA submission.
Topic Author
Fremdon Ferndock
Posts: 1181
Joined: Fri Dec 24, 2021 11:26 am

Re: Finding out your Power of Attorney is useless

Post by Fremdon Ferndock »

afan wrote: Thu Jun 16, 2022 12:35 pm We set up DPOAs when we first did our estate planning years ago. At the time, our attorney told us that it is difficult to get institutions to accept springing powers. They are afraid of being held responsible for ensuring that the conditions required for the power to spring have been satisfied. With a durable power, the attorney said, do not put the institution in that position so they are more likely to accept them.

When we finally needed to use a DPOA on behalf of an elderly person, we discovered that none of the institutions would accept a perfectly valid DPOA. They would not even look at it. Ultimately we simply transferred all assets to one brokerage, under the RLT the person had set up years before. There was never any problem with having us act as trustees of the RLT.

We have our taxable assets in RLTs to avoid this problem.
We did the Vanguard agent forms but this reminds me to go after them again about DPOAs.
I assume it is true that one could force them to comply with Pennsylvania law. I also assume that this would be expensive and time consuming.
Disappointing to hear that someone had a recent experience with the same issue.
Excellent point about DPOAs with springing powers. I can understand why it might be more difficult to use this since some sort of medical evidence would have to be provided to validate the incapacity of the individual. I believe I should probably contact my attorney to change this in my DPOA.
"Risk is what’s left over when you think you’ve thought of everything." ~ Morgan Housel
increment
Posts: 1736
Joined: Tue May 15, 2018 2:20 pm

Re: Finding out your Power of Attorney is useless

Post by increment »

Fremdon Ferndock wrote: Thu Jun 16, 2022 12:43 pm My understanding to this point is that if my primary POA is unable to serve, then my contingent POA would just need to submit a new agent affidavit form.
Since you are being very careful, I don't think that you should assume that Schwab will have a copy of your PoA document for your contingent agent to cite. But you will make sure that person will have access to the document, won't you?
One remaining issue that occurred to me is that my DPOA names two individuals as contingents to serve jointly.
If you require that they act together, you should check the policies of Schwab and your other financial institutions. Many of these authorization documents have language to the effect that "even if your legal document requires that multiple agents sign off on any transaction, you should arrange to work that out among yourselves because you agree that we may act on the instructions of only one agent."
Topic Author
Fremdon Ferndock
Posts: 1181
Joined: Fri Dec 24, 2021 11:26 am

Re: Finding out your Power of Attorney is useless

Post by Fremdon Ferndock »

increment wrote: Thu Jun 16, 2022 12:57 pm
Fremdon Ferndock wrote: Thu Jun 16, 2022 12:43 pm My understanding to this point is that if my primary POA is unable to serve, then my contingent POA would just need to submit a new agent affidavit form.
Since you are being very careful, I don't think that you should assume that Schwab will have a copy of your PoA document for your contingent agent to cite. But you will make sure that person will have access to the document, won't you?
One remaining issue that occurred to me is that my DPOA names two individuals as contingents to serve jointly.
If you require that they act together, you should check the policies of Schwab and your other financial institutions. Many of these authorization documents have language to the effect that "even if your legal document requires that multiple agents sign off on any transaction, you should arrange to work that out among yourselves because you agree that we may act on the instructions of only one agent."
Very good points to keep in mind. I believe you are correct on both counts. Very timely, since I was just speaking with my attorney. I've asked him to change the language of the DPOA so that my contingent POAs can act independently rather than jointly.
"Risk is what’s left over when you think you’ve thought of everything." ~ Morgan Housel
cas
Posts: 2258
Joined: Wed Apr 26, 2017 8:41 am

Re: Finding out your Power of Attorney is useless

Post by cas »

Fremdon Ferndock wrote: Thu Jun 16, 2022 12:43 pm My understanding to this point is that if my primary POA is unable to serve, then my contingent POA would just need to submit a new agent affidavit form.

One remaining issue that occurred to me is that my DPOA names two individuals as contingents to serve jointly. I don't see any provision for that in the agent affidavit, or perhaps each contingent could both submit agent affidavits to allow this?
You had mentioned in a different thread that your lawyer had suggested that maybe a Revocable Living Trust might be appropriate for you.

I have no idea what the conversation was that led him to say that, but if you are dealing with a taxable account, I'm wondering if it was your desire to have a lot of contingencies and flexibility in the DPOA. As you can see, when it comes to actual policies and paperwork of actual financial firms, all that flexibility in a DPOA is kind of forcing a square peg in a round hole. A RLT would likely be a better fit. (I've been a (co)trustee of a RLT holding a Vanguard taxable account for a number of years for a person with advancing/now-advanced Alzheimer's, with the RLT having most of the provisions you want, and it has worked very smoothly.)

Of course, if you are dealing with IRAs/401(k)s, that is a different annoying matter, since those can't be titled in the name of a RLT.
RetiredAL
Posts: 3537
Joined: Tue Jun 06, 2017 12:09 am
Location: SF Bay Area

Re: Finding out your Power of Attorney is useless

Post by RetiredAL »

Fremdon Ferndock wrote: Thu Jun 16, 2022 12:43 pm
One remaining issue that occurred to me is that my DPOA names two individuals as contingents to serve jointly. I don't see any provision for that in the agent affidavit, or perhaps each contingent could both submit agent affidavits to allow this?
Jointly as in both are required to with do any action? Or Jointly, as in either can do the action?

This first may be problematic. The second should be just a second "agents" form.

When re-doing my Dad's POA 2 years ago, the lawyer said do not do an A and B, that A or B was workable but could have conflicts. We ended up doing a line-of-procession of single POA's.

DW's POA is me or C1, then C2, then C3.
My POA is DW or C1, then C2, then C3.
Our RLT is DW or me, then C1, then C3, then C2.
C1 is local. C2 is in-state but 200 miles away. C3 is 1200 miles away.
Topic Author
Fremdon Ferndock
Posts: 1181
Joined: Fri Dec 24, 2021 11:26 am

Re: Finding out your Power of Attorney is useless

Post by Fremdon Ferndock »

RetiredAL wrote: Thu Jun 16, 2022 1:43 pm
Fremdon Ferndock wrote: Thu Jun 16, 2022 12:43 pm
One remaining issue that occurred to me is that my DPOA names two individuals as contingents to serve jointly. I don't see any provision for that in the agent affidavit, or perhaps each contingent could both submit agent affidavits to allow this?
Jointly as in both are required to with do any action? Or Jointly, as in either can do the action?

This first may be problematic. The second should be just a second "agents" form.

When re-doing my Dad's POA 2 years ago, the lawyer said do not do an A and B, that A or B was workable but could have conflicts. We ended up doing a line-of-procession of single POA's.

DW's POA is me or C1, then C2, then C3.
My POA is DW or C1, then C2, then C3.
Our RLT is DW or me, then C1, then C3, then C2.
C1 is local. C2 is in-state but 200 miles away. C3 is 1200 miles away.
This was an A and B designation, with the provision that either could act alone if the other was unable or unwilling. That seemed unworkable to me as far as my financial accounts were concerned. I considered a line of succession but then decided that appointing both with authority to act independently would probably be best in my case. I'd much rather have the joint appointment. As my attorney said, the limitations being placed by the financial institutions are not consistent with the law on power of attorney. You just have to live with it I guess.
"Risk is what’s left over when you think you’ve thought of everything." ~ Morgan Housel
lws
Posts: 831
Joined: Tue Apr 25, 2017 6:12 pm

Re: Finding out your Power of Attorney is useless

Post by lws »

Fidelity will accept your own DPOA.
Fidelity allows multiple DPOAs.
A Durable Power of Attorney—Affidavit and Indemnification form must be submitted for each of them.
One may download the form from Fidelity.
The form for each DPOA must be notarized.
Topic Author
Fremdon Ferndock
Posts: 1181
Joined: Fri Dec 24, 2021 11:26 am

Re: Finding out your Power of Attorney is useless

Post by Fremdon Ferndock »

lws wrote: Thu Jun 16, 2022 2:11 pm Fidelity will accept your own DPOA.
Fidelity allows multiple DPOAs.
A Durable Power of Attorney—Affidavit and Indemnification form must be submitted for each of them.
One may download the form from Fidelity.
The form for each DPOA must be notarized.
Thanks. This looks similar to the Schwab process. The "agent" must submit an Affidavit and Indemnification form along with a copy of the DPOA. It looks like they don't expect to keep the DPOA on file to be referenced in the future for successor agents; rather, each successor agent would submit the DPOA with their form. Does that sound right?
"Risk is what’s left over when you think you’ve thought of everything." ~ Morgan Housel
RetiredAL
Posts: 3537
Joined: Tue Jun 06, 2017 12:09 am
Location: SF Bay Area

Re: Finding out your Power of Attorney is useless

Post by RetiredAL »

lws wrote: Thu Jun 16, 2022 2:11 pm Fidelity will accept your own DPOA.
Fidelity allows multiple DPOAs.
A Durable Power of Attorney—Affidavit and Indemnification form must be submitted for each of them.
One may download the form from Fidelity.
The form for each DPOA must be notarized.
Yes;

However, Fidelity will not allow the Agent to on-line withdraw money even to a pre-defined xfer point, you must call and talk to a CSR. Schwab does allow on-line withdrawals.

So neither is perfect.
Topic Author
Fremdon Ferndock
Posts: 1181
Joined: Fri Dec 24, 2021 11:26 am

Re: Finding out your Power of Attorney is useless

Post by Fremdon Ferndock »

Here's a general question I have regarding successor, or contingent, "agents" in one's DPOA. It occurs to me that if the DPOA specifies that successor agents only have authority in the event the designated agent is unable or unwilling to serve, then some sort of evidence would have to be provided to attest to the latter, correct? Anybody run into this with their financial company? If the designated agent has died, then I suppose the death certificate would need to be provided. But what if the designated agent has become incompetent, or just unable to deal with the demands of handling the financial matters for the person any longer? What sort of documentation might be required by Schwab or Fidelity to honor the DPOA and appoint the applicant successor agent? I can see this being a problem.
"Risk is what’s left over when you think you’ve thought of everything." ~ Morgan Housel
lws
Posts: 831
Joined: Tue Apr 25, 2017 6:12 pm

Re: Finding out your Power of Attorney is useless

Post by lws »

Fremdon Ferndock wrote: Thu Jun 16, 2022 2:54 pm
lws wrote: Thu Jun 16, 2022 2:11 pm Fidelity will accept your own DPOA.
Fidelity allows multiple DPOAs.
A Durable Power of Attorney—Affidavit and Indemnification form must be submitted for each of them.
One may download the form from Fidelity.
The form for each DPOA must be notarized.
Thanks. This looks similar to the Schwab process. The "agent" must submit an Affidavit and Indemnification form along with a copy of the DPOA. It looks like they don't expect to keep the DPOA on file to be referenced in the future for successor agents; rather, each successor agent would submit the DPOA with their form. Does that sound right?
Both the primary and each successor agent shown on the DPOA document need their own affidavit.
Only one DOPA document is required.
Don't know if they keep the paper copy or scan it into their system.
mptfan
Posts: 7218
Joined: Mon Mar 05, 2007 8:58 am

Re: Finding out your Power of Attorney is useless

Post by mptfan »

johnnyc321 wrote: Thu Jun 16, 2022 12:17 pm If the power of attorney is valid, sue them. In Florida (and likely most other places) the bank/institution will get the prize of paying your attorneys' fees and costs.
There is a binding arbitration clause in the account agreement that prevents a customer from "suing them."
User avatar
ResearchMed
Posts: 16795
Joined: Fri Dec 26, 2008 10:25 pm

Re: Finding out your Power of Attorney is useless

Post by ResearchMed »

mptfan wrote: Thu Jun 16, 2022 3:16 pm
johnnyc321 wrote: Thu Jun 16, 2022 12:17 pm If the power of attorney is valid, sue them. In Florida (and likely most other places) the bank/institution will get the prize of paying your attorneys' fees and costs.
There is a binding arbitration clause in the account agreement that prevents a customer from "suing them."

For violating a state law? Would a binding arbitration clause in an account agreement prevent enforcing a law?
(I don't know the answer to that.)

This isn't simply a "we didn't like the customer service" situation.

RM
This signature is a placebo. You are in the control group.
Topic Author
Fremdon Ferndock
Posts: 1181
Joined: Fri Dec 24, 2021 11:26 am

Re: Finding out your Power of Attorney is useless

Post by Fremdon Ferndock »

Well, the obvious question is that if Schwab and Fidelity apparently can manage handling an attorney-prepared DPOA what's wrong with Vanguard? Not to say there might not be snags in their process, but VG can't even get out of the gate. Very disappointing. Maybe they're just not making enough money and scraping by.
"Risk is what’s left over when you think you’ve thought of everything." ~ Morgan Housel
User avatar
galawdawg
Posts: 5231
Joined: Thu Dec 14, 2017 11:59 am
Location: Georgia

Re: Finding out your Power of Attorney is useless

Post by galawdawg »

Fremdon Ferndock wrote: Thu Jun 16, 2022 3:01 pm Here's a general question I have regarding successor, or contingent, "agents" in one's DPOA. It occurs to me that if the DPOA specifies that successor agents only have authority in the event the designated agent is unable or unwilling to serve, then some sort of evidence would have to be provided to attest to the latter, correct? Anybody run into this with their financial company? If the designated agent has died, then I suppose the death certificate would need to be provided. But what if the designated agent has become incompetent, or just unable to deal with the demands of handling the financial matters for the person any longer? What sort of documentation might be required by Schwab or Fidelity to honor the DPOA and appoint the applicant successor agent? I can see this being a problem.
May I respectfully suggest this question/scenario is one best addressed by your attorney. They will be best positioned to understand your concerns and your intentions and implement them in accordance with the applicable laws and procedures of your state. They may have some other recommendations, including reviewing with you whether a DPOA is the best vehicle to meet the various concerns you have expressed.
mptfan
Posts: 7218
Joined: Mon Mar 05, 2007 8:58 am

Re: Finding out your Power of Attorney is useless

Post by mptfan »

ResearchMed wrote: Thu Jun 16, 2022 3:34 pm
mptfan wrote: Thu Jun 16, 2022 3:16 pm
johnnyc321 wrote: Thu Jun 16, 2022 12:17 pm If the power of attorney is valid, sue them. In Florida (and likely most other places) the bank/institution will get the prize of paying your attorneys' fees and costs.
There is a binding arbitration clause in the account agreement that prevents a customer from "suing them."
For violating a state law? Would a binding arbitration clause in an account agreement prevent enforcing a law?
(I don't know the answer to that.)
I do know the answer, and it is yes. A mandatory binding arbitration clause prevents a customer from suing for any reason, including violations of state law. Federal law trumps state law...google "Federal Arbitration Act preemption."

https://harvardlawreview.org/2021/01/st ... ation-law/
Topic Author
Fremdon Ferndock
Posts: 1181
Joined: Fri Dec 24, 2021 11:26 am

Re: Finding out your Power of Attorney is useless

Post by Fremdon Ferndock »

galawdawg wrote: Thu Jun 16, 2022 3:49 pm
Fremdon Ferndock wrote: Thu Jun 16, 2022 3:01 pm Here's a general question I have regarding successor, or contingent, "agents" in one's DPOA. It occurs to me that if the DPOA specifies that successor agents only have authority in the event the designated agent is unable or unwilling to serve, then some sort of evidence would have to be provided to attest to the latter, correct? Anybody run into this with their financial company? If the designated agent has died, then I suppose the death certificate would need to be provided. But what if the designated agent has become incompetent, or just unable to deal with the demands of handling the financial matters for the person any longer? What sort of documentation might be required by Schwab or Fidelity to honor the DPOA and appoint the applicant successor agent? I can see this being a problem.
May I respectfully suggest this question/scenario is one best addressed by your attorney. They will be best positioned to understand your concerns and your intentions and implement them in accordance with the applicable laws and procedures of your state. They may have some other recommendations, including reviewing with you whether a DPOA is the best vehicle to meet the various concerns you have expressed.
My question was intended to find out what the financial institution is going to require. If Schwab receives an Agreement and Affidavit form from my contingent POA, I'm virtually sure they will want evidence that the primary POA is no longer able or willing to serve and that authority should be granted to the contingent. Maybe this isn't a common occurrence but I can see it happening in my case since my primary POA is nearly my age. I'll get advice from my attorney, since this would be an issue for the contingent POA wherever they might want to exercise the POA. But, I'm learning that financial institutions are not necessarily consistent with the law, as my attorney noted.
"Risk is what’s left over when you think you’ve thought of everything." ~ Morgan Housel
mptfan
Posts: 7218
Joined: Mon Mar 05, 2007 8:58 am

Re: Finding out your Power of Attorney is useless

Post by mptfan »

Fremdon Ferndock wrote: Thu Jun 16, 2022 4:14 pmBut, I'm learning that financial institutions are not necessarily consistent with the law, as my attorney noted.
Indeed. And thanks to mandatory binding arbitration clauses, they cannot be sued in court for violating state laws.
User avatar
ResearchMed
Posts: 16795
Joined: Fri Dec 26, 2008 10:25 pm

Re: Finding out your Power of Attorney is useless

Post by ResearchMed »

mptfan wrote: Thu Jun 16, 2022 4:16 pm
Fremdon Ferndock wrote: Thu Jun 16, 2022 4:14 pmBut, I'm learning that financial institutions are not necessarily consistent with the law, as my attorney noted.
Indeed. And thanks to mandatory binding arbitration clauses, they cannot be sued in court for violating state laws.

I (obviously) did not know this, and it's more than a bit unsettling... sort of a carte blanche to do "bad things". There are so many situations that could require agreements where the victim client or employee really doesn't have much choice about just not using the service.

One that comes to mind was while we had our money captive at Vanguard due to the 403b plan, but there are other situations that may not be quite as much "without any choice", but almost...

What about violating Federal law? Um, such as anti-discrimination or labor laws?
I'm not feeling comfortable about state laws being protected by binding arbitration, and thus free of some legalities. :annoyed

Thanks.

RM
This signature is a placebo. You are in the control group.
fourwheelcycle
Posts: 1968
Joined: Sun May 25, 2014 5:55 pm

Re: Finding out your Power of Attorney is useless

Post by fourwheelcycle »

I have served as DPOA for finances and healthcare, and executor, for my aunt and my father. My aunt's (Boston) attorney set her up with a revocable living trust. When she was 79, she appointed me as co-trustee of her trust. She did not need any help until age 89, when she ended up in the hospital after two falls and required assisted living the rest of her life. I went to BoA with her and they readily added my name to her trust checking account. I set up a trust account at Vanguard and moved all of her non-checking assets to that account, which I linked to the trust's BoA account. She had a DPOA for finances that named me, but I never had to use it.

My father has a will and DPOAs for finances and healthcare which name me. His most recent DPOAs were executed in 2012. In 2016, my father asked me to take over all of his finances. He took me to his local (regional) bank and tried to establish me as his POA. His bank said they had no provision for POA transaction authority (!) and suggested he should simply make me the secondary joint owner of his account. He did that, and they issued checks with both our names on them. I set up an individual account at Vanguard in his name. He filled out Vanguard's form to give me full transaction authority and I moved all of his non-checking assets into that account, naming each of his (many) children as equal share TOD beneficiaries. I also set up a joint account at Vanguard with my father as the primary owner. I put a sufficient amount of his savings in that account to cover his final expenses. After his death, I will distribute equal shares of any remaining money in "our" joint checking and Vanguard accounts to my siblings as gifts from me. He is now in assisted living, with no house, car, or other assets. His state does not treat joint accounts as probate assets, so I am hopeful I will be able to avoid probate in his (distant) state.

The one time I needed to use his DPOA for finances was to close a BoA credit card he no longer used, in 2020, when he was no longer competent to close it himself. I presented his 2012 DPOA to BoA. They said it was too old and they would not recognize it. I am also a long-time BoA customer, so I went up the ladder and found a customer service rep who was more considerate, pointing out all I wanted to do was to close a no longer used credit card.

My main comment is that in my experience it may be easier to manage a relative's finances as the co-trustee of their joint revocable trust, or with full transaction authority at a brokerage like Vanguard, rather than relying on their DPOA. Joint non-trust accounts can also work, and can provide immediate access for final expenses, but they make you the owner of the funds after your relative's death, requiring good faith with their other heirs and gift reporting if you distribute more than the IRS annual gift exclusion amount to any individual. Since I have many siblings, I know I will be under the IRS annual exclusion for any remaining funds in my father's estate.
User avatar
galawdawg
Posts: 5231
Joined: Thu Dec 14, 2017 11:59 am
Location: Georgia

Re: Finding out your Power of Attorney is useless

Post by galawdawg »

Fremdon Ferndock wrote: Thu Jun 16, 2022 4:14 pm My question was intended to find out what the financial institution is going to require.
I understand and you'd need to pose that question to Schwab and any other brokerage you consider.

I just wonder if you are trying to fit a square peg into a round hole. That's why I suggested a consultation with your attorney might be a wise approach....an experienced estate planning attorney is well-equipped to take your needs, concerns and wishes and translate those into the most appropriate legal steps to accomplish your objectives.
Topic Author
Fremdon Ferndock
Posts: 1181
Joined: Fri Dec 24, 2021 11:26 am

Re: Finding out your Power of Attorney is useless

Post by Fremdon Ferndock »

galawdawg wrote: Thu Jun 16, 2022 4:52 pm
Fremdon Ferndock wrote: Thu Jun 16, 2022 4:14 pm My question was intended to find out what the financial institution is going to require.
I understand and you'd need to pose that question to Schwab and any other brokerage you consider.

I just wonder if you are trying to fit a square peg into a round hole. That's why I suggested a consultation with your attorney might be a wise approach....
Not sure what you mean. My assets are all in accounts at TIAA, Vanguard, and TD. I'd like to be comfortable that, if I become incompetent to manage my finances, someone can do that for me. I naively believed that the DPOA prepared by my attorney was all I needed, but now I know that it really depends on whether these outfits where I have my life savings are going to honor my DPOA and what I can do now to try to make sure of that. And I am consulting with my attorney on this matter, and have already revised my DPOA in order to better comply with the onerous limitations these financial outfits place on you. My one remaining question (hopefully) is what my contingent POAs will need to know when (if) they have to apply for the authority to manage my accounts. I could just let them figure it out themselves, but that doesn't seem like a great approach.
"Risk is what’s left over when you think you’ve thought of everything." ~ Morgan Housel
afan
Posts: 8193
Joined: Sun Jul 25, 2010 4:01 pm

Re: Finding out your Power of Attorney is useless

Post by afan »

Fremdon Ferndock wrote: Thu Jun 16, 2022 3:01 pm Here's a general question I have regarding successor, or contingent, "agents" in one's DPOA. It occurs to me that if the DPOA specifies that successor agents only have authority in the event the designated agent is unable or unwilling to serve, then some sort of evidence would have to be provided to attest to the latter, correct? Anybody run into this with their financial company? If the designated agent has died, then I suppose the death certificate would need to be provided. But what if the designated agent has become incompetent, or just unable to deal with the demands of handling the financial matters for the person any longer? What sort of documentation might be required by Schwab or Fidelity to honor the DPOA and appoint the applicant successor agent? I can see this being a problem.
For our trusts, we have cotrustees, rather than succession "if unwilling or unable." Again, we don't want to get hung up on whether that has happened. A cotrustee has full authority to act.
We don't know how to beat the market on a risk-adjusted basis, and we don't know anyone that does know either | --Swedroe | We assume that markets are efficient, that prices are right | --Fama
User avatar
galawdawg
Posts: 5231
Joined: Thu Dec 14, 2017 11:59 am
Location: Georgia

Re: Finding out your Power of Attorney is useless

Post by galawdawg »

Fremdon Ferndock wrote: Thu Jun 16, 2022 5:08 pm My one remaining question (hopefully) is what my contingent POAs will need to know when (if) they have to apply for the authority to manage my accounts. I could just let them figure it out themselves, but that doesn't seem like a great approach.
And there is where, IMO, things may get complicated. I honestly don't know what any brokerage might require and whether that is dependent upon the laws of your state and the specific wording of your DPOA. You may encounter some difficulty in implementation of dual contingent/successor agents when the principal is incapacitated and unable to communicate when the succession should take place. And that may be a challenge no matter how accommodating or reasonable the brokerage or other financial institution. .

There are also disadvantages of naming dual agents and I personally don't usually recommend that approach. Hopefully your attorney reviewed the potential downsides with you before you put that provision in place.
Topic Author
Fremdon Ferndock
Posts: 1181
Joined: Fri Dec 24, 2021 11:26 am

Re: Finding out your Power of Attorney is useless

Post by Fremdon Ferndock »

afan wrote: Thu Jun 16, 2022 5:24 pm
Fremdon Ferndock wrote: Thu Jun 16, 2022 3:01 pm Here's a general question I have regarding successor, or contingent, "agents" in one's DPOA. It occurs to me that if the DPOA specifies that successor agents only have authority in the event the designated agent is unable or unwilling to serve, then some sort of evidence would have to be provided to attest to the latter, correct? Anybody run into this with their financial company? If the designated agent has died, then I suppose the death certificate would need to be provided. But what if the designated agent has become incompetent, or just unable to deal with the demands of handling the financial matters for the person any longer? What sort of documentation might be required by Schwab or Fidelity to honor the DPOA and appoint the applicant successor agent? I can see this being a problem.
For our trusts, we have cotrustees, rather than succession "if unwilling or unable." Again, we don't want to get hung up on whether that has happened. A cotrustee has full authority to act.
This isn't a trust, but the issue is probably the same: what steps are necessary to disqualify the current trustee (or POA in my case) and replace them with a named successor? That could be solved by just naming multiple trustees (or POAs), but I may not want the successors to have immediate authority. Perhaps in my case I could just modify the DPOA to grant immediate authority to everyone, but not let them know they have immediate authority. Seems a bit sketchy but it would be the simplest approach. Successors wouldn't be successors anymore, so no need to provide documentation to the financial companies to disqualify the primary POA.
"Risk is what’s left over when you think you’ve thought of everything." ~ Morgan Housel
Topic Author
Fremdon Ferndock
Posts: 1181
Joined: Fri Dec 24, 2021 11:26 am

Re: Finding out your Power of Attorney is useless

Post by Fremdon Ferndock »

galawdawg wrote: Thu Jun 16, 2022 5:39 pm
Fremdon Ferndock wrote: Thu Jun 16, 2022 5:08 pm My one remaining question (hopefully) is what my contingent POAs will need to know when (if) they have to apply for the authority to manage my accounts. I could just let them figure it out themselves, but that doesn't seem like a great approach.
And there is where, IMO, things may get complicated. I honestly don't know what any brokerage might require and whether that is dependent upon the laws of your state and the specific wording of your DPOA. You may encounter some difficulty in implementation of dual contingent/successor agents when the principal is incapacitated and unable to communicate when the succession should take place. And that may be a challenge no matter how accommodating or reasonable the brokerage or other financial institution. .

There are also disadvantages of naming dual agents and I personally don't usually recommend that approach. Hopefully your attorney reviewed the potential downsides with you before you put that provision in place.
An earlier poster said that Fidelity allows multiple POAs; each one must submit an Authorization and Indemnity form along with a copy of the DPOA. Don't know if Schwab allows this, or there must be just one at a time. My DPOA was changed to specify that the two contingent POAs can act independently. In my mother's case, her DPOA specified that myself and my sister were both appointed as POA and could act independently. That always worked very well for us, but probably wouldn't for everyone. My contingents are not my children, so there's not as close and cooperative relationship as in my mother's case. But I can envision that it would be better if I did have dual secondary POAs, since I can't say which one would be the best as the single POA.

Your comments about the implementation difficulty for secondary POAs resonates with me. It might be better just to name everyone as immediate POAs and let them handle it. Would be my sister and her two children (my nephews).
"Risk is what’s left over when you think you’ve thought of everything." ~ Morgan Housel
Topic Author
Fremdon Ferndock
Posts: 1181
Joined: Fri Dec 24, 2021 11:26 am

Re: Finding out your Power of Attorney is useless

Post by Fremdon Ferndock »

For anyone who might be left following this side-thread about successor POAs establishing their authority, my attorney has pointed out this clause in my DPOA:
"Any person, institution, entity or organization to whom this Power of Attorney is presented may rely upon an affidavit under oath by any successor Agent that the initial Agent is unable or unwilling to serve or to continue to serve as my Agent"
He indicated that under this clause, an affidavit presented by my successor POA to the financial organization, along with the DPOA, should be sufficient to authorize the successor. Hope he's right.
"Risk is what’s left over when you think you’ve thought of everything." ~ Morgan Housel
afan
Posts: 8193
Joined: Sun Jul 25, 2010 4:01 pm

Re: Finding out your Power of Attorney is useless

Post by afan »

It might help if the firms were willing to read the document. In my case, I never got that far. The companies simply declared that they do not honor any POA that was not recently enacted on their form.

But for argument, if they were to read it, that language still leaves the company responsible for determining that it has received an affidavit, under oath, from a successor agent.

We also give our cotrustees the right to appoint other trustees.

We are in the fortunate circumstance of having people we completely trust in these roles. If that were not the case, then we would need to deal with conditional appointments and worry about who knows what and when.
We don't know how to beat the market on a risk-adjusted basis, and we don't know anyone that does know either | --Swedroe | We assume that markets are efficient, that prices are right | --Fama
ncbill
Posts: 2053
Joined: Sun Jul 06, 2008 4:03 pm
Location: Western NC

Re: Finding out your Power of Attorney is useless

Post by ncbill »

Here the DPOA must be registered at the county courthouse, I assume to be considered valid.

In past years I've setup RLTs with eldercare lawyers (plus DPOA & HCPOA, of course) for relatives who had been diagnosed with terminal illness.

I've only ever used their DPOAs to transfer their financial assets into their respective trusts...the lawyer's office handed retitling their homes into the name of their RLT.

Also, those RLTs were setup with myself as co-trustee, not successor.

Sure made things easier on me as primary caregiver.
Topic Author
Fremdon Ferndock
Posts: 1181
Joined: Fri Dec 24, 2021 11:26 am

Re: Finding out your Power of Attorney is useless

Post by Fremdon Ferndock »

Problem with Trusts for me is that most of my assets are in retirement accounts that cannot be transferred to a trust (without a major tax hit anyway). So I'm stuck with the POA arrangement and dealing with 3 different financial organizations. Would love to consolidate all of this if I could.
"Risk is what’s left over when you think you’ve thought of everything." ~ Morgan Housel
jebmke
Posts: 25476
Joined: Thu Apr 05, 2007 2:44 pm
Location: Delmarva Peninsula

Re: Finding out your Power of Attorney is useless

Post by jebmke »

Fremdon Ferndock wrote: Fri Jun 17, 2022 11:44 am Problem with Trusts for me is that most of my assets are in retirement accounts that cannot be transferred to a trust (without a major tax hit anyway). So I'm stuck with the POA arrangement and dealing with 3 different financial organizations. Would love to consolidate all of this if I could.
We have significant assets in Vanguard IRAs so this is also on my radar screen. In fact, we just met with our attorney for a planned overhaul of our estate plan. Our IRAs are significant chunk of assets but less than 50%. I have no intention of giving agency to anyone other than my spouse so if VG isn't going to recognize a POA that becomes active should both of us be incapable then I have some work to do. I will have to have this conversation with Vanguard fairly soon; if I have to pull the IRAs I'll pull the entirety of our holdings because I have no desire to split our holdings across multiple platforms.
Don't trust me, look it up. https://www.irs.gov/forms-instructions-and-publications
Topic Author
Fremdon Ferndock
Posts: 1181
Joined: Fri Dec 24, 2021 11:26 am

Re: Finding out your Power of Attorney is useless

Post by Fremdon Ferndock »

jebmke wrote: Fri Jun 17, 2022 11:53 am
Fremdon Ferndock wrote: Fri Jun 17, 2022 11:44 am Problem with Trusts for me is that most of my assets are in retirement accounts that cannot be transferred to a trust (without a major tax hit anyway). So I'm stuck with the POA arrangement and dealing with 3 different financial organizations. Would love to consolidate all of this if I could.
We have significant assets in Vanguard IRAs so this is also on my radar screen. In fact, we just met with our attorney for a planned overhaul of our estate plan. Our IRAs are significant chunk of assets but less than 50%. I have no intention of giving agency to anyone other than my spouse so if VG isn't going to recognize a POA that becomes active should both of us be incapable then I have some work to do. I will have to have this conversation with Vanguard fairly soon; if I have to pull the IRAs I'll pull the entirety of our holdings because I have no desire to split our holdings across multiple platforms.
Please let us know if you get anywhere with VG on this issue. That's a different problem from mine, which would require them to recognize your attorney-prepared DPOA; but I was told they won't do that.
"Risk is what’s left over when you think you’ve thought of everything." ~ Morgan Housel
RetiredArtist
Posts: 222
Joined: Wed Aug 26, 2015 4:38 pm

Re: Finding out your Power of Attorney is useless

Post by RetiredArtist »

UpperNwGuy wrote: Wed Jun 15, 2022 6:01 pm
RetiredArtist wrote: Wed Jun 15, 2022 5:06 pm Our POA's were rejected 90% of the time. Everyone wants you to fill out their form. Same for Medical POA's.
Who is rejecting your medical POAs?
Our relatives' lawyer had provided Medical POA's naming us.
Their medical provider (Kaiser) would not accept them. It was less trouble to fill out the Kaiser POA form than pay the lawyer to argue. The mobile notary was a frequent visitor.
User avatar
Lee_WSP
Posts: 10401
Joined: Fri Apr 19, 2019 5:15 pm
Location: Arizona

Re: Finding out your Power of Attorney is useless

Post by Lee_WSP »

mptfan wrote: Thu Jun 16, 2022 3:52 pm
ResearchMed wrote: Thu Jun 16, 2022 3:34 pm
mptfan wrote: Thu Jun 16, 2022 3:16 pm
johnnyc321 wrote: Thu Jun 16, 2022 12:17 pm If the power of attorney is valid, sue them. In Florida (and likely most other places) the bank/institution will get the prize of paying your attorneys' fees and costs.
There is a binding arbitration clause in the account agreement that prevents a customer from "suing them."
For violating a state law? Would a binding arbitration clause in an account agreement prevent enforcing a law?
(I don't know the answer to that.)
I do know the answer, and it is yes. A mandatory binding arbitration clause prevents a customer from suing for any reason, including violations of state law. Federal law trumps state law...google "Federal Arbitration Act preemption."

https://harvardlawreview.org/2021/01/st ... ation-law/
A third party is not subject to the agreement signed by the principals. If the state law gives the cause of action to the attorney in fact, the bank has no ability to invoke the arbitration clause. Nevertheless, the arbitrator will still rule in the customers favor.
User avatar
Lee_WSP
Posts: 10401
Joined: Fri Apr 19, 2019 5:15 pm
Location: Arizona

Re: Finding out your Power of Attorney is useless

Post by Lee_WSP »

What infirmity are you so worried about such that your agent needs immediate access?
Post Reply