Bank Requires More Than Financial POA

UPDATED: Oct 1, 2022

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Bank Requires More Than Financial POA

My mom fell forward hitting her head and broke her neck 3 years ago. She is 89 and I realize some of her memory loss is due to age, however I think that she had more damage from the fall. Anyway, she set up a Living Will and Trust many years ago, making me her only living child the POA for medical and financial affairs. I will also be the Successor Trustee. The document lists her as the Trustor and the Trustee. Is that common? Since her bank account is listed as part of the Trust, the bank is asking me to get an

Asked on July 12, 2019 under Estate Planning, California


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 3 years ago | Contributor

A power of attorney gives the attorney-in-fact or agent (those are the terms for the person given power by the POA; in this case, you) legal power or authority over the personal assets and money (e.g. bank accounts) of the. principle, or person making the POA. But anything in a trust does NOT belong to that person: even if she created the trust and put the assets into it, the trust is a separate legal person from her, and the assets in the trust are owned by it, not by her. So if the bank account is part of the trust, it is NOT her account and the POA she gave you has no power over it. The trustee is the person with power over money or assets in a trust, but if your mother is the trustee, that means she is the one who has the power. If you are the successor trustee, your mother should be able to execute (which, if she can't move or sign but is still mentally competent, means directly someone one, in front of witnesses and notarized, to sign on her behalf) a document stepping down or withdrawing as trustee; when she does that, the successor trustee--you--will take over and that will give you authority over the trust assets, including the bank account. The document she executes, which someone else can type up for her, needs to be witnessed and notarized the way your state requires trust documents or instruments to be.

IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

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