POA - original vs copy

[masteff]

This is a personal question... My dad has Alzheimers and my step-mother has power of attorney. While reviewing some records, I noted that Dad might have a "lost" IRA (we consolidated his several IRAs a couple years ago and may have missed one). So now my step-mother is trying to get info about the account and the investment firm is requesting she present the original POA. The estate planning binders my step-mother and I have only have copies of the POA (I presume the original is at the lawyer's office). Other financial firms have accepted the POA copy.

So the question is: does the investment firm have any valid reason to insist on seeing the original POA or I am in the right to expect the POA copy be accepted?

EDIT: after further discussion w/ my step-mother, it's likely that she misstated the situation. But I'd still be interested in any answers for future reference.

[mbozek]

This is a personal question... My dad has Alzheimers and my step-mother has power of attorney. While reviewing some records, I noted that Dad might have a "lost" IRA (we consolidated his several IRAs a couple years ago and may have missed one). So now my step-mother is trying to get info about the account and the investment firm is requesting she present the original POA. The estate planning binders my step-mother and I have only have copies of the POA (I presume the original is at the lawyer's office). Other financial firms have accepted the POA copy.

So the question is: does the investment firm have any valid reason to insist on seeing the original POA or I am in the right to expect the POA copy be accepted?

EDIT: after further discussion w/ my step-mother, it's likely that she misstated the situation. But I'd still be interested in any answers for future reference.

M:

Some financial custodians ask for everything and settle for less. What they will accept will be up to the legal department to approve distribution using a copy of a POA. I would send the copy and see what they say. Most financial firms and banks will accept a copy of a POA; most request the agent sign an indemnification agreement.

It would be highly unusual for an an attorney who drafted the POA to keep it in his possesson because a POA should held by the principal and available to the agent in case it is needed immediately (and also because the agent/spouse may not know who the attorney was who drafted the POA or the attorney may not be available). I always give original POAs (usually 3) to the principal and tell them to avoid giving out the originals unless absoutely necessary to avoid running out of them. Your step mom should contact the attorney to get the original POA. Also check to see if it is in an SD box or in the possession of another family member.

[K2retire]

Even if you find the original, and have to provide it o the IRA holder, insist that they take a copy and return the original to you!

[MoJo]

I've had to deal with this issue in the past. As was noted, some take copies, others insist on an original - but ALL that wanted an original, returned it promptly. If the firm has a local office, ask if you can present the POA there, and keep it in your possession if possible. Otherwise, send it "registered" (not "certified") mail, and pay for proof of delivery so you can track it all the way.

Good luck.

Michael

[masteff]

Thanks for the various comments.

Also check to see if it is in an SD box or in the possession of another family member.

Thanks, I need her to look in the SD box anyway... we'll check for the original POA and trust docs too.

[John G]

My folks drafted trusts, wills, POA and health POAs back in 1999 after many years of urging by me.

A couple of interesting things:

1. local law may put a sunset date on these documents - I remember that Florida has a 7 year life attached to one

2. sometimes state laws change and updating the documents to reflect new rules may make them a little more bullet proof

3. my folks picked an attorney many years younger than them - well, she retired 5 years ago so we are now dealing with the fellow who bought the practice.

4. while my mom has the "original", the attorney office kept what they refer to as an "original" with signatures in their files. Everyone else got a simple copy.

My experience suggests that the half life on these kinds of documents is perhaps 5 years. The number of grandchildren increased, we had one marriage and the relative financial circumstances of family members changed a lot.

[GMK]

Thanks for your post, John G. It got me thinking , and maybe a few others.

I need to look into state law changes and sunsets.

[mbozek]

My folks drafted trusts, wills, POA and health POAs back in 1999 after many years of urging by me.

A couple of interesting things:

1. local law may put a sunset date on these documents - I remember that Florida has a 7 year life attached to one

2. sometimes state laws change and updating the documents to reflect new rules may make them a little more bullet proof

3. my folks picked an attorney many years younger than them - well, she retired 5 years ago so we are now dealing with the fellow who bought the practice.

4. while my mom has the "original", the attorney office kept what they refer to as an "original" with signatures in their files. Everyone else got a simple copy.

My experience suggests that the half life on these kinds of documents is perhaps 5 years. The number of grandchildren increased, we had one marriage and the relative financial circumstances of family members changed a lot.

Limiting a POA to a finite period would contradict the purpose of executing a durable power of attorney which is to allow the attorney in fact to continue to act on behalf of the principal indefinitely without interuption under the powers delegated by the principal. Termination of a durable POA executed by an incapacted principal after a finite period would require that the agent expend the funds of the principal to be reappointed by a court which makes no sense. Limiting a health care proxy to a finite period make no sense because the principal will not remember to re execute it after expiration and it could not be used to carry out its intended purpose.

The website of the FL Bar Association states that there are only 3 ways for a durable POA to be terminated: death of the principal, revocation by the principal and determination of incapacity by a court where the POA is not continued in force. I have reviewed POAs in other states such as NY and PA in force for 20 years which have been accepted without question.

One valid reason for executing a new POA is when the state law on POAs change as it did recently in NY. However there may be valid reasons for not updating a NY POA to conform to the new law and execution of a new POA should be discussed with counsel.

The Principal should recieve at least 3 original signed POAs (more if there are multiple attoneys in fact who must act together or if there are other circumstances such as sale of real estate by the agent) to avoid the need to contact the the attorney who drafted the POA. Most financial service co will accept a copy of a POA or will return the original POA after approving the transaction.

[K2retire]

From a legal perspective, that is totally correct. However, the transfer agent that I worked for refused to accept a POA that was more than 6 months old. I'm sure that will be litigated eventually, but in the mean time it complicates things for trying to get anything done.

[mbozek]

From a legal perspective, that is totally correct. However, the transfer agent that I worked for refused to accept a POA that was more than 6 months old. I'm sure that will be litigated eventually, but in the mean time it complicates things for trying to get anything done.

Why a transfer agent would only accept a POA less than 6 months old is beyond me. If it it is valid when it is executed then validity continues until revoked or or the principal dies. What if the principal was incpacitated and could not execute a new POA? In many cases the agent does not accept appointment as attorney in fact untl many years after execution by the principal.

The new NY POA form requires all third parties to accept a valid POA regardless of how old it is. The Third party can demand that the agent provide an affidavit that the POA is in full force and effect when they are asked to accept it. I would review state law to see if a third party can refuse to accept a valid POA executed under state law.

[K2retire]

From a legal perspective, that is totally correct. However, the transfer agent that I worked for refused to accept a POA that was more than 6 months old. I'm sure that will be litigated eventually, but in the mean time it complicates things for trying to get anything done.

Why a transfer agent would only accept a POA less than 6 months old is beyond me. If it it is valid when it is executed then validity continues until revoked or or the principal dies. What if the principal was incpacitated and could not execute a new POA? In many cases the agent does not accept appointment as attorney in fact untl many years after execution by the principal.

The new NY POA form requires all third parties to accept a valid POA regardless of how old it is. The Third party can demand that the agent provide an affidavit that the POA is in full force and effect when they are asked to accept it. I would review state law to see if a third party can refuse to accept a valid POA executed under state law.

I agree that what they are doing is wrong -- but I was not high enough in the food chain to persuade them of that.