Bank Requires More Than Financial POA

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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

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 2 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.


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