Uniform General Power of Attorney Act

[J Simmons]

Does ERISA permit a plan administrator to deal with the agent of an employee per a power of attorney in the following respects under a state's enactment of Uniform Power of Attorney Act,

Unless a power of attorney otherwise provides, language in a power of attorney granting general authority with respect to retirement plans authorizes the agent to: (a) Select the form and timing of payments under a retirement plan and withdraw benefits from a plan; (b) Make a rollover, including a direct trustee to trustee rollover, of benefits from one (1) retirement plan to another; © Establish a retirement plan in the principal's name; (d) Make contributions to a retirement plan; (e) Exercise investment powers available under a retirement plan; and (f) Borrow from, sell assets to or purchase assets from a retirement plan.

Another provision, at least as enacted in my state, provides

A person is not required to accept an acknowledged power of attorney if: * * * (b) Engaging in a transaction with the agent or the principal in the same circumstances would not be consistent with federal law;

[ERISAnut]

Of course it does; as it does not preclude this from happening. The key issue here is that the Plan Administrator (in order to remain as conservative) may refuse to accept this (and there is nothing the state law can do about it).

Basically, the Plan Administrator is ultimately responsible for ensuring the participants rights under the plan. Within this responsibility, the Plan Administrator can accept instructions via Power of Attorney (or Attorney in Fact) when the Plan Administrator (after performing the necessary due diligence) believes it to be within the participant's best interests to honor the Power of Attorney. This is a very subjective standard.

But, as a standard, the Plan Administrator may say "never".

[Guest Sieve]

I'm not a preemption guru--or even a premption -phile--but I suspect that there is an issue whether all or any of these provisons preempt ERISA and whether Treasury would accept them, and I'm speaking here specifically of settlor actions such as the ability to establish a retirement plan for someone else or to make contributions (other than deferrals). If, however, we're considering a POA for a self-employed individual with respect to the business and performing settlor-type functions, then I think that's a different issue dealing with who the POA is granted by and with what powers (powers over business decisions?).

Whether acts more specific to an individual participant--rollovers, investing, borrowing, distributions, deferrals--can be directed pursuant to a POA is, I think, a bit easier to accept, especially pursuant to a durable POA when the participant has become disabled, and I would feel reasonably comfortable doing so (assuming no employer knowledge of wrong-doing) as long as the POA specifically refers to the specific act (i.e., not the generic language contemplated by the Uniform Power of Attorney Act you quote).

Moreover, without the document specifically providing that the administrator can act on a request pursuant to a POA, then I don't think an administrator should do so.

Probably not much help, but just some issue that come to my mind in a first pass.

(Written before reading ERISAnut's post.)