# POA's dealing with banks



## Johnboy (Oct 5, 2017)

My wife has one brother and one sister, all of which are named POAs for property for their father. It is a Continuing POA.
My father-in-law, now 95 has GICs with one of the big Canadian Banks. After dealing with my own father's estate over the past year I suggested to them to disperse some of his GIC money to the three of them to cut down on probate fees. BTW, the man has more than enough coming in monthly to cover his expenses. The bank was provided with a copy of the Will showing the 3 of them as sole beneficiaries and a copy of the POA signed by their father. So their request to the bank was to simply place the GIC money, in several laddered GICs, when they come due into their father's bank account for them to disperse equally to the 3 of them. Sooo, long story short and several meetings later, the bank seems to be accusing them of doing something wrong, immoral almost criminal ! I have talked to my lawyer and she said this happens all the time and that this is NOT the bank's business, it is the responsibility of the POAs to act in the best interest of the person for which they have POA. 
Next question, can GICs be transferred to another bank? I find this unbelievable under the circumstances that a bank can refuse direction of POAs ! 
Thanks for anyone who can help with my questions. New user here at Canadian Money Forum...looks like a very good site for information.


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## james4beach (Nov 15, 2012)

This post was previously waiting moderation, so I'm bumping it now for visibility.


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## Oldroe (Sep 18, 2009)

We set up bank account with my parents names and all 4 of us kids.

As money came in house sale,auction, investments we deposit the money in this account.

My sister and I are POA after my Dads passing we went threw finances making sure there was plenty of money for my mom.

We just had 4 bank drafts made up for sibling according to the will.

The 1 problem we had is my parents only invested in GIC and my mom isn't able to understand so we can't change this. We did get permission to invest in these principle guaranteed funds.


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## Mortgage u/w (Feb 6, 2014)

You can't transfer the GICs if they are held directly by the branch - they can only be transferred if held in a brokerage account - or if you cash them out.

Not sure what type of POA you have but if its just for the Will, it may not be enough to manage assets if your father-in-law is not incapacitated. If he is, you will need to provide medical proof. 

What you would need is a general POA, and if you want to further simplify things, open up a bank account under all four names. That way, there is no question as to who the money belongs to.


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## humble_pie (Jun 7, 2009)

Johnboy said:


> My wife has one brother and one sister, all of which are named POAs for property for their father ...
> 
> long story short and several meetings later, the bank seems to be accusing them ...
> 
> I have talked to my lawyer and she said this happens all the time and that this is NOT the bank's business, it is the responsibility of the POAs to act in the best interest of the person for which they have POA.



this is an interesting thread because it is so easy to see the bank's POV, even though it might be on the strict side for this case.

all appears to be ethically in order here & indeed the forum has seen several members posting about how they, themselves, have gifted funds to others in order to keep their eventual estates as small as possible, for the eventual one-eyed taxman.

but the bank doesn't know anything about this & in fact we as customers & shareholders probably don't want our banks to meddle in personal inheritance matters.

it's easy to see why a red flag would go up for a bank, when it would be asked to transfer assets held by an aging senior in outright ownership, to 3 attorneys named under powers-of-attorney, who happen to be his adult children. Notice that it is the attorneys who are doing the asking, not the aging senior himself.

bref, while a move like this may make financial sense, it may be too late now, if the senior party himself is not able to personally make & direct such gifts.

next, i am surprised by the lawyer's remarks, if "this is NOT the bank's business" are her exact words. Ethical obligations such as preventing money laundering were recently added to the Bank Act in order to increase the powers of the banks to maintain lawful transactions in an orderly society.

would this lawyer be prepared to defend her views in litigation against a bank that would refrain from cooperating with attorneys who wish to use their powers to enrich themselves, i wonder. What would resident legal expert mukhang pera have to say about all this, i wonder.

lastly, kudos to the cmf members who have posted that they, themselves, have set about stripping down their personal portfolios & gifting excess funds to others including charities, precisely in order to remove as much of their eventual estates as possible from the taxman's bite! as we can see, this is an activity that has to go strictly DIY! ie don't leave it up to your attorneys, heirs, legatees & assigns!

.


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## sags (May 15, 2010)

A POA allows the payment of "normal" monthly living expenses. Each expenditure should have a receipt and be justified.

If a bank notes a POA holder draining an account they may well inform the police. It happened to a guy I worked with.


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## andrewf (Mar 1, 2010)

I don't blame the nosy bank staff from expressing concern about stripping away the father's assets. For every responsible scenario like the one described here (though probate is a much exaggerated boogeyman--you might be better off letting gramps earn the interest at a potentially lower marginal income tax rate and facing probate later), there are examples of elder abuse where parents are stripped of assets and warehoused in dismal old age homes.


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## OnlyMyOpinion (Sep 1, 2013)

Johnboy's advice was simply wrong (and immoral and illegal). The bank is correct.
POA does not give you the power to distribute of give away assets, regardless of whether they are aligned with the wishes of a will.
You need to spend some time reviewing the responsibilities and obligations that come with POA.


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## twa2w (Mar 5, 2016)

Agree the bank is absolutely correct here. A POA does not give the attorney Carte Blanche over the assets. 
The POA is required to act in the best interests of the client, not themselves.. If the person granting the POA had wanted the ownership of the assets changed, he/she had the ability to do so at the time the POA was granted or before.. Since they did not do so, it means they did not want to do so.
The banks have an obligation to protect their client. They can refuse a POA's request and in fact can outright refuse a POA.
Your lawyer obviously is inexperienced or not knowledgeable in this area, or is unclear on what the request was.
While I know why they want to do what they are trying it is improper.
Yes the money can be transferred to another bank, but you will run into the same issue. ( unless the new bank is asleep at the switch)
For the record, I have dealt with this many times and have legal opinions and case law to support it, after an 40 year career in banking, wills, estates and trust.

If you believe your lawyer, suggest she write a letter to the bank suggesting they are wrong. He or she will get a response from the banks attorneys outlining the banks position. It maybe an education for her.

You should be thankful the bank is looking after your fatherinlaws interests.


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## Mukhang pera (Feb 26, 2016)

humble_pie said:


> it's easy to see why a red flag would go up for a bank, when it would be asked to transfer assets held by an aging senior in outright ownership, to 3 attorneys named under powers-of-attorney, who happen to be his adult children. Notice that it is the attorneys who are doing the asking, not the aging senior himself.
> 
> next, i am surprised by the lawyer's remarks, if "this is NOT the bank's business" are her exact words. Ethical obligations such as preventing money laundering were recently added to the Bank Act in order to increase the powers of the banks to maintain lawful transactions in an orderly society.


I will join with hp in being surprised if a lawyer actually said "this is NOT the bank's business". One can well imagine a hapless senior being stripped of assets under the bank's nose and the bank simply saying "Well, the guy came in with an apparently-valid POA, so we had no choice." I cannot see a court excusing the bank's indifference should said senior decide to sue for the losses. 

Even if the bank can fairly be said to be acting wrongfully on the facts presented (a doubtful proposition to begin with), the bank's duty of care is to its customer, not to those purporting to deal with the customer's assets under a POA. Should the customer suffer loss, the bank might well be held to account. Should the bank's hard-nosed attitude prevail and the customer dies while the impasse continues, what has the customer lost? For what must the bank be held to account? Should the POA-holding estate beneficiaries sue because their inheritances were diminished by the amount of some probate fees that could have been avoided, they will likely be told the bank owed them no duty of care and that the bank acted prudently _vis-a-vis_ its customer. Even if we say that the loss (if it be seen as such) is one that redounds to the estate and not the individual beneficiaries, a successful suit would seem improbable. Further, from a practical perspective, if I were in the bank's shoes, it would rather have to pay damages amounting to the probate fees on, say, an account containing $100,000, and not have to pay for the loss of $100,000 itself.

Finally, it must be recalled that the relationship between a bank and its customer who has placed funds with the bank is that of debtor and creditor. The funds on deposit are _not_ the customer's money. It has been held that “a bank as an arm’s length creditor is entitled to look after its own interest”. 

See: 430707 B.C. Ltd. et al. v. Royal Bank of Canada, 2004 BCSC 350 (at para. 41)

http://www.courts.gov.bc.ca/Jdb-txt/SC/04/03/2004BCSC0350.htm


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## Mukhang pera (Feb 26, 2016)

twa2w said:


> Agree the bank is absolutely correct here. A POA does not give the attorney Carte Blanche over the assets.
> ...
> You should be thankful the bank is looking after your fatherinlaws interests.


twa2w got in a post while I was composing mine. It kinda' renders redundant my comments. twa2w's are agreed with.


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## humble_pie (Jun 7, 2009)

i'm vaguely reminded of the victims-of-Earl-Jones vs Royal Bank lawsuits.

earl jones was a self-described financial & estate planner who was endowed with the necessary charm to cover up all the missing parts. 

elderly people rushed to give earl jones their money because he was able to personally offer a much higher interest rate than any of the chartered banks or credit institutions. As it would turn out, jones was operating a ponzi scheme. Similar to bernie madoff in the US.

one fine day after a few decades of high interest incomes, clients phoning the earl jones firm heard a recording - his wife's voice - saying the firm had permanently closed. A few days later the police found earl jones. He was bankrupt. Penniless except for his houses (he had three or four, in canada & in the US.) They tried him & they jailed him for a good number of years. He's out now.

the story created a huge flap in montreal because there were so many elderly victims who had lost everything. 

it was the Royal Bank that had been earl jones' banker. All his life. Naturally, the victims sued the Royal Bank. The petition alleged that the bank had to have known what the old rogue was up to. The bank should have stopped the fraud, the victims complained.

the judge agreed & held the Royal Bank accountable. In the end, earl jones victims did receive some compensation. They received a pittance from the proceeds of selling all the real estate properties. Most of their compensation came from the Royal Bank lawsuits.

it's stories like the above that keep bank managers on their toes.


.


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## Beaver101 (Nov 14, 2011)

Johnboy said:


> My wife has one brother and one sister, all of which are named POAs for property for their father. It is a Continuing POA.
> My father-in-law, now 95 has GICs with one of the big Canadian Banks. After dealing with my own father's estate over the past year I suggested to them to disperse some of his GIC money to the three of them to cut down on probate fees. BTW, the man has more than enough coming in monthly to cover his expenses. The bank was provided with a copy of the Will showing the 3 of them as sole beneficiaries and a copy of the POA signed by their father. So their request to the bank was to simply place the GIC money, in several laddered GICs, when they come due into their father's bank account for them to disperse equally to the 3 of them. Sooo, long story short and several meetings later, the bank seems to be accusing them of doing something wrong, immoral almost criminal ! I have talked to my lawyer and she said this happens all the time and that this is NOT the bank's business, it is the responsibility of the POAs to act in the best interest of the person for which they have POA.
> *Next question, can GICs be transferred to another bank?* I find this unbelievable under the circumstances that a bank can refuse direction of POAs !
> Thanks for anyone who can help with my questions. New user here at Canadian Money Forum...looks like a very good site for information.


 ... all banks will follow the same bsureaucracy. Since the kids are going to inherit that GIC, and with grandpa at 95 with sufficient living expenses why don't they get gramp to gift the money first? No need to deal with POAs/SOBs at the banks or worst yet, their PITA estate bureau come soliciting business.


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## AltaRed (Jun 8, 2009)

Agree completely with Twa2w and Muhhang pera. Johnboy (and that nutbar lawyer) need to Google information on POA responsibilities.


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## ian (Jun 18, 2016)

Keep in mind that a POA ceases on death. After that it is down to the will and the executor/executrix.


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## Plugging Along (Jan 3, 2011)

As the POA for my mom ther who has fallen ill, I can understand both sides. It can be frustrating and challenging for the POA if the banks don't cooperate. However, our lawyer warned me this could happen. In fact she did a very good job reminding me to keep really good records and that I should be able to show transparency and that I have acted in the best interested of my parents at all the times. The lawyer informed me that the banks and anyone else could come and ask me for proof that I am acting on my mothers best interest. In terms of banks, they also do not all have the same policies on what a POA is allowed to do or not. Trust me, I have been to each mjor bank recently.

Ironically, my mother who is now suffering from dementia amount other things wants to transfer all the assets to me (she has for a while). However, because I had to enact the POA, it has less rights than if it was joint owned. Originally, my parents have always wanted me jointly on their accounts, but I felt it just didn't seem righ, and wanted them to have their own independance. Now I wish I would have listened. 

The summary is, if the banks ask you to prove that you are acting on our FIL best interest, you must do so. They have a duty to your father in law not you.


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## AltaRed (Jun 8, 2009)

Although there are exceptions, if stated in the POA document that it is permissible to do so, to be able to gift some assets to siblings or children, it is an automatic red flag to any FI if a POA appears to be benefitting him/herself or other family members with the individual's assets. 

For example: If the individual had been gifting $5k/year to children for the past 10 years, then it suggests the individual would have likely continued to do so if competent to do so. In which case, there is precedent for continuing that action. Still, as Plugging Along alluded too, the FI's fudiciary duty is to the account holder so the FI has every reason to balk/prohibit 'leakage' of those assets. Personally, if I was the Attorney in such an instance, I would be loathe to gift any assets from that individual.

Too often, the stated motivation is to reduce probate fees upon death. That is a bloody red herring. Probate fees are minor relative to the value of the assets themselves. Worst case is ON with a 1.5% probate fee. Really now.... that is hardly relevant. More often than not, it is my opinion the potential beneficiaries are more interested getting their hands on the money sooner rather than later to invest/spend as they wish. I would be skeptical of any beneficiary making an argument for gifting of funds. I would also consider it a red herring about putting assets into joint accounts. I would not trust the account co-owner of any joint account in such instances. I have seen, or heard, too many sorry stories of leeches. They can bloody well wait until the body is cold.

I have been Attorney for my mother in the later years of her life, and ultimately her Executor when the time came. It would have been unconscionable to have bled off assets before death, at which time as Ian points out, the POA ceases anyway and the Executor/Administrator takes over.


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## OhGreatGuru (May 24, 2009)

Johnboy said:


> ... that this is NOT the bank's business, it is the responsibility of the POAs to act in the best interest of the person for which they have POA. ....


1. Yes, it is the bank's business - they have a fiduciary responsibility to your father-in-law (FIL), not to the POA's.

2. Please explain how the POA's liquidating FIL's assets and paying it to themselves is "in the best interest of" of the FIL. That is what the bank doesn't understand. It's a pretty clear conflict of interest from their point of view, absent any direction from FIL. 

3. News Flash to the POA's! The will doesn't come into effect until after FIL is dead! Trying to implement it beforehand doesn't work.

4. I am guessing FIL is not able to give any clear direction at this point in his life. If I am wrong, arrangements should be made to get bank rep. in touch with him. There were ways to set this up beforehand, but if he is no longer capable, it's "too bad - so sad".


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## ian (Jun 18, 2016)

We had POA's, and used them, for eight years or so. Never had an issue with anyone, including the banks.


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## AltaRed (Jun 8, 2009)

They are not an issue, if used as intended, i.e. in the best interests of the grantor (principal).


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## Plugging Along (Jan 3, 2011)

Just as a continuation of this thread and losing for some opinions on some more experienced members on how the banks would view the follow. 

My mother had some mental health issues and dementia prior to her current health issues. The short story is she has banks accoutns spread all over the place at many different institutions which my father does not have access to. There are service fees because she has these accounts all over the place and is not making the minimum amount. As the POA it has been a nightmare trying to help my parents even pay their regular bills because money is spread out everywhere, and each bank has its own rules. As a result, I have been paying my parents bills that know of until I straighten everything out. It consumes a lot of my time which could be used seeing my mother or spending with my family.

I am thinking of consolating all of the accounts except one, in order to make it easier for me to manage and track and reduce unnecessary service charges. This would require me to close out the accounts and move investments to on institution. It is in the true interest of my parents, but I have been wondering what the banks may think if I closing accounts, not realizing there are so many of them all over the place. I of course will have complete transparency that the money is all going beck into an account owned by my mother. Thoughts?

This is where though I understand why banks may questions actions, but it makes it really difficult where someone is truly trying to look after the parent.


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## twa2w (Mar 5, 2016)

Plugging along, if these are bank accounts and not investments, you have two options.
1) Go to the bank you want to keep an account at. Take your information about the bank accounts you want to close. The bank will complete balance of account transfer forms which you will sign on your mothers behalf as POA. The bank will send these out to the other banks and the banks will close the accounts and send the money to the surviving bank for deposit to your mothers account. Note this may take a few weeks.
Or
2) if your POA has been accepted by all the banks, you can go to each bank individually abd close the account. The bank will close the account and make a settlement or draft payable to your mother. You can deposit this into your mothers account at the surviving bank.
Number 2 is quicker but may be more hassle and may incur fees for bank drafts if the bank won't do a settlement.( not sure if the banks do settlements any more). Also likely more time consuming on your part.
Number one is likely easier from a hassle and time commitment but will take longer to gather funds.

A similiar process could apply to investments - say gics at maturity, providing funds remain in your mothers name and are moved to an account in her name.

Provided you have presented your POA to the banks and they have recognized it, you should not have too many issues.


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## Plugging Along (Jan 3, 2011)

twa2w said:


> Plugging along, if these are bank accounts and not investments, you have two options.
> 1) Go to the bank you want to keep an account at. Take your information about the bank accounts you want to close. The bank will complete balance of account transfer forms which you will sign on your mothers behalf as POA. The bank will send these out to the other banks and the banks will close the accounts and send the money to the surviving bank for deposit to your mothers account. Note this may take a few weeks.
> Or
> 2) if your POA has been accepted by all the banks, you can go to each bank individually abd close the account. The bank will close the account and make a settlement or draft payable to your mother. You can deposit this into your mothers account at the surviving bank.
> ...


Thank you this is very helpful, I didn't think about just transferring the funds under her name. We are not in a rush for the funds as I am covering their bills for now. My time is the thing the most scarce. The banking is a combination of bank accounts, investments, registered (rif and TFSA) and non registered, and safety deposit boxes. Some of her investment are locked on GICs I have been accepted as the POA for all accounts that I know of. I am trying to figure out the best way to consolidate. Also, I have suspect that she opened multiple TFSA this year and over contributed, so I am trying to fix that too. It's been a little overwhelming trying to even figure out where everything is, so I hadn't thought about the next step yet.


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## AltaRed (Jun 8, 2009)

Agree with Twa2w. My bro and I used both methods in consolidating all of our mother's affairs into RBC Royal Bank/RBC Asset Management/RBC Di about 10 years ago, maybe a bit more. As long as all the monies are in your mother's name, there should be no real issues raised by FIs.

It sounds like you have a real mess to clean up, but just take bite sized chunks at a time based on what you perceive orders of priority. As the saying goes, you can only chew on an elephant one piece at a time.


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## Plugging Along (Jan 3, 2011)

^It has been a real mess, and I know i still have a ways to go. I suspect there are even accounts that were opened that my mother forgot about, as she never mentioned them to me, and when I whento the Bank for a print out, there were accounts that were at $0 because of monthly service fees over the years. It’s one of those things that I wish I would have added my name on the accounts when my mother asked. My mother never invested a day in the stock market in her life, but I think she would have been a good investor, she likes to diversify and has managed to have something in all of the big banks. (Just hoping I will see humor in this when I am done) 

Do you you think there will be issues if I consolidate the accounts to ones where my father has joint access (his and her name is already on there) vs just her name on these ones I am finding? I am trying to make this sustainable for the long term so I don’t have to go and pay every bill on their behalf, and my dad can do it. I would also move her investments to the same bank.


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## Oldroe (Sep 18, 2009)

It has nothing to do with POA if your dad mom and you have your name on accounts unless you have other siblings.

In our case 4 siblings and both my parents are on the accounts. Another big point we don't fight.

My mom is priority 1. She is in a nursing home because of stroke and the need for 24 hr care.


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## AltaRed (Jun 8, 2009)

I think you should start with an account in your mother's name only when consolidating from other institutions if you are doing electronic transfers. They might question sole ownership assets going into a joint account, i.e. the legit question they could ask is whether that is in your mother's best interest, and/or is this what she might have done herself. The 'red line' question is always 'what is in her best interests'. Then work within that consolidated institution to see if they will allow her assets to go into a joint account at the same institution 

It could be different with an actual bank draft or cheque though. Speculation on my part.


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## twa2w (Mar 5, 2016)

Plugging along, you may want to check the bank of Canada site for unclaimed balances. If your mom was such a diversifier, it is possible she left money at some bank past the statutory limit( 9 years) and the money was sent to bank of Canada. I agree with altareds last comment. Best to stick with name to name.


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## humble_pie (Jun 7, 2009)

Plugging Along said:


> ^It has been a real mess, and I know i still have a ways to go. I suspect there are even accounts that were opened that my mother forgot about, as she never mentioned them to me, and when I whento the Bank for a print out, there were accounts that were at $0 because of monthly service fees over the years ...
> 
> Do you you think there will be issues if I consolidate the accounts to ones where my father has joint access (his and her name is already on there) vs just her name on these ones I am finding? I am trying to make this sustainable for the long term so I don’t have to go and pay every bill on their behalf, and my dad can do it. I would also move her investments to the same bank.




Plugging the silver lining to the cloud is that you have excellent suggestions coming from twa2w & from altaRed, who both have experience in this field.

i only had one surviving parent to look after so i don't know much about trying to consolidate one parent's numerous bank accounts into the other parent's joint accounts. 

however upon reflection i believe i would "not" do this. The reason would be that one doesn't know how much longer the healthy parent will remain in good shape himself. If something would happen to your dad, then the "consolidated" accounts would tumble back into your hands as Attorney & all the running around would start up again.

i believe i'd work towards one account for my mother, with myself as Attorney. I would expect the chosen bank to be helpful, since everybody knows that Plugging is always doing what is best for her mother & the bank should know this as well. I believe that nowadays one can put many regularly recurring bills on auto pre-authorized payment, so that feature should help you with paying the bills.

Plugging re your dad, you seem to have discovered that if your mother had opened joint accounts with yourself a long time ago when she was less frail, then today everything would be easier to manage. What about taking these steps now, with your dad, while he is still in good healtlh?

i'm imagining that your Dad, unlike your mother, may be a person who does not like to share his accounts with anyone, not even the daughter whom he has named to serve as his future Attorney. But give the topic a go anyhow. In fact, probably best to give it several GO's.

.


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## Plugging Along (Jan 3, 2011)

Thanks again for the advice and experience everyone. It good to know that I can draw on some experiences, and to honest, ‘vent’ a bit. I need to be positive in real life and can’t really complain because it just adds stress. 

I am very lucky that my family is really logical and we don’t fight (about money, other things yes). We all want what is best for our parents both in health in finances. My dad is that suggested tha5 the acccoijt be moved to their joint (it always should have been, but my mother made all of these accounts due to her mental condition). He has alread6 suggested that the kids or at least the ones at the same city be added His account (only you one thank goodness), the joint investments, they had already put my name on them before. It’s the ones that mom took afterwards that we didn’t know about that ar3 a mess. My siblings are have no issues with having just one name or all of the names, we based it on just as long as one of the kids name is on it. We have complete trust when it comes to money with each other. In fact, my siblings suggested that an executor fee be written in (as I am the first executeor too) and it felt weird, as it would be charging family. 

Rant done. I have added POA to all but the one bank that has my parents joint which I know of. I am sure that she also has another ‘hidden account’ there. I have learned dealing with almos5 all of the banks that their processes and what I can or cannot do varies. In one bank, I have to go in person only, no bank card or online, at another, the6 gave me full access if it was me. Once I am done getting my name added and have an inventory, I will see which one makes the most sense to consolidate to. I didn’t think of automatic bill payments. My parents have always been agains5 that due to budgeting and the in inability to monitor (they don’t have Internet or even a computer). If the comp any 8s still willing send the bill physically but oa6 automatically (many do both on line)this may be helpful. 

For the other accounts out there that I don’t know about, I will” have to figure out later, I have to guess that if there are any, then t(e balances will be low, or the fees have been eating away at the small balances. I will go to each bank and just have to see if there is an account. I don’t know if there is a wa6 for them to tell me on the phone if they do have something so I don’t waste my time going in.

I think I have taken over OP thread. I wonder wha5 happened to him.


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## AltaRed (Jun 8, 2009)

humble_pie said:


> I believe that nowadays one can put many regularly recurring bills on auto pre-authorized payment, so that feature should help you with paying the bills.


It is extremely time efficient to do so. I only have about 3 items that have to be initiated manually (property tax, income tax, auto insurance renewal)



> Plugging re your dad, you seem to have discovered that if your mother had opened joint accounts with yourself a long time ago when she was less frail, then today everything would be easier to manage. What about taking these steps now, with your dad, while he is still in good healtlh?
> 
> i'm imagining that your Dad, unlike your mother, may be a person who does not like to share his accounts with anyone, not even the daughter whom he has named to serve as his future Attorney. But give the topic a go anyhow. In fact, probably best to give it several GO's.


It has been discussed many times why it is not a good idea to have a joint account with anyone other than one's spouse. Co-owners may eventually have a tendency to tap into the account to meet their own financial needs, or having account assets seized to pay debts or sucked into a divorce settlement. It can work with a trusted single offspring with no 'partner' but should be used sparingly. 

I would never have a joint account with my own 2 kids even though they are successful bankers in their own right and that discomfort increases with age... as one starts feeling more and more vulnerable or dependent cognitively (and even physically). And yes, they have Enduring POAs on my behalf and while that may sound contradictory, it isn't. There are significant responsibilites as POA as compared to being a JTWROS co-owner of a financial account.

Added: Thinking more about it... I don't know that an FI would (or should) allow someone be POA over a JTWROS account in which the Attorney is also a co-owner. That would be a real, or perceived, conflict of interest.


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## Plugging Along (Jan 3, 2011)

AltaRed said:


> 1. Doesn't "everyone" already do this? I only have about 3 items that have to be initiated manually (property tax, income tax, auto insurance renewal)
> 
> 
> 2. It has been discussed many times why it is not a good idea to have a joint account with anyone other than one's spouse. Co-owners may eventually have a tendency to tap into the account to meet their own financial needs, or having account assets seized to pay debts or sucked into a divorce settlement. It can work with a trusted single offspring with no 'partner' but should be used sparingly.
> ...


1. I am beginning to think my parents are the only people in North America not to have an email, computing device or a smart phone. They are old, English is their second language, and they are fear of technologyand things they don’t understand. The answering machine died the other day, he wanted a new TAPE one, it was really hard to find a new set that he could just press a button to listen to it. He is still wonder how he can ‘see’ how much recording time he has. So no internet banking for my parents. I had to change some of the accounts so the mail a statement so they don’t charge for the manual passbook. They grew up in a different time, and have earned the right not to have to follow technology.

2. Though I agree for most situations about joint accounts, I feel our family is very different. As kids, we have been helping our parent manage their finances for before I was of legal age. My siblings and I are all fortunate financial, and have much more than our parents due to our upbringings. We have tried to get our parent safe to spend their money because we have no need. I cannot imagine ANY scenario where would have to tap into their funds. The only case would be the spouses, being that am the youngest and have been wth my partner for the least time of only 24 years. I feel the risk is small, becuase the amounts of money parents have are paltry compared to wha5 we would actall6 fight over in a divorce. We have an understanding no matter what, wha5 is our parents stays that way regardless if it’s joint. Our spouses are pretty stable and it would take a pretty big deteriotion of character for any of them to change. My dad always had good advice, don’t partner with someone who has less than you and wants what you have, or they would be more tempted to con you, on our case, the likely hood of my parents conning us are low, they need us more, and apparently I am the least well off so the greatest risk. 

3. Ironically, my parents have always wanted us joint. It actually makes me more uncomfortable than them especially as they become more older and more vulnerable. The more I saw on as they ages, the less i wanted that responsibility or f9or them ever even consider that I would want their money or take advantage of them. I didn’t get on the joint accounts more for my not accepting they are getting old, Hence the mess. I would have been just as responsible before, and done nothing different, but now it’s so much harder for me. I will not put m6 kids through this when i am older. They will be joint as soon as I think they are responsible enough, I don’t need banks, the law and others watching out for me against my kids if i have done my job as a parent. 

4. This is the challenge I am facing. My mother doesn’t reconginize she has a mental capacity issue and is in denial. The drs and everyone has agreed she. Her physical is getting better but mental worse. She is already asking me to take her to the bank and be added on as a joint. The POA has been executed already. The banks even said a joint Account is better than POA for what needs to be done. The lawyer told me ‘Give a try on a good day, and see what happens’. 

Thoughts on number 4


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## OnlyMyOpinion (Sep 1, 2013)

AltaRed said:


> ... Thinking more about it... I don't know that an FI would (or should) allow someone be POA over a JTWROS account in which the Attorney is also a co-owner. That would be a real, or perceived, conflict of interest.


I suppose if the bank has agreed to set up such a joint account, they have in effect absolved the POA of obligations with regard to funds in that particular account?

As POA, in addition to having some PAD payments set up, I have on-line access which allows easy monitoring of balances, ability to transfer into their chq account to cover costs, pay other bills, etc., all from a distance.
From the bank's perspective and mine, there is a full accounting trail of fund flow, who/when/how much.
I find that having all accounts at one bank makes this aspect of the POA much easier.


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## OnlyMyOpinion (Sep 1, 2013)

dup post


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## AltaRed (Jun 8, 2009)

PA, note I went back and edited my post whiile you were quoting me......I did the edits because I was a bit sharp/harsh in my response. My response was primarily intended for a broader audience rather than your specific family situation which appears to have significant 'Old Country' family culture than more modern New World cultures do, and my views are conditioned by real life experiences I have seen or heard about personally, and/or real life situations I see in various legal and accounting blogs/websites, etc. That all said, you know your family....so JTWROS issues are obviously not of concern.

Regarding your request for thoughts on 4? Certainly, a JTWROS account is easier to manage than being POA on an account for reasons already given, but am surprised the bank would necessarily accommodate allowing a joint account when you are also POA over the other co-owner. I guess they don't care though if your mother appears cognizant enough on any given day to appear to be of sound mind. The bank account manager and/or branch manager should automatically ask her in private though if she really understands what she is doing. It may depend on who you talk too though at the bank. 

Given what you've said on 2 and 3 above, I would guess that if the bank 'allows' it, and everything is transparent with the rest of the family, then go ahead and do it. Just retain all the monthly statements for 'evidence' in case some family dispute comes out of left field several years from now. You will want to demonstrate you have not been siphoning from the account, if only for your own 'peace of mind'. An interesting discussion item though. I might ask my sons at Xmas time how they'd handle it (one of my sons is a bank branch manager, and the other is a supervisor in a branch - different companies of course).


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## AltaRed (Jun 8, 2009)

OnlyMyOpinion said:


> I suppose if the bank has agreed to set up such a joint account, they have in effect absolved the POA of obligations with regard to funds in that particular account?
> 
> As POA, in addition to having some PAD payments set up, I have on-line access which allows easy monitoring of balances, ability to transfer into their chq account to cover costs, pay other bills, etc., all from a distance.
> From the bank's perspective and mine, there is a full accounting trail of fund flow, who/when/how much.
> I find that having all accounts at one bank makes this aspect of the POA much easier.


Indeed. FWIW, my bro and I had online access to all of our mother's accounts (banking and investment) and they were all at one institution. We had everything we could set up on auto-debit. We just insisted on NOT being joint owners of her accounts, if nothing else, for optics purposes.


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## Oldroe (Sep 18, 2009)

And another issue is beneficiary's on investments. When we collapsed dads TFSA all 4 of use where beneficiary so 4 bank drafts where issued.


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## Plugging Along (Jan 3, 2011)

AltaRed said:


> PA, note I went back and edited my post whiile you were quoting me......I did the edits because I was a bit sharp/harsh in my response. My response was primarily intended for a broader audience rather than your specific family situation which appears to have significant 'Old Country' family culture than more modern New World cultures do, and my views are conditioned by real life experiences I have seen or heard about personally, and/or real life situations I see in various legal and accounting blogs/websites, etc. That all said, you know your family....so JTWROS issues are obviously not of concern.
> 
> Regarding your request for thoughts on 4? Certainly, a JTWROS account is easier to manage than being POA on an account for reasons already given, but am surprised the bank would necessarily accommodate allowing a joint account when you are also POA over the other co-owner. I guess they don't care though if your mother appears cognizant enough on any given day to appear to be of sound mind. The bank account manager and/or branch manager should automatically ask her in private though if she really understands what she is doing. It may depend on who you talk too though at the bank.
> 
> Given what you've said on 2 and 3 above, I would guess that if the bank 'allows' it, and everything is transparent with the rest of the family, then go ahead and do it. Just retain all the monthly statements for 'evidence' in case some family dispute comes out of left field several years from now. You will want to demonstrate you have not been siphoning from the account, if only for your own 'peace of mind'. An interesting discussion item though. I might ask my sons at Xmas time how they'd handle it (one of my sons is a bank branch manager, and the other is a supervisor in a branch - different companies of course).


I do understand why you posted as you did. I realize that our family is the not the norm. It seems that every branch handles things differently and each institution even more so, which has been frustrating to say the least. 



AltaRed said:


> Indeed. FWIW, my bro and I had online access to all of our mother's accounts (banking and investment) and they were all at one institution. We had everything we could set up on auto-debit. We just insisted on NOT being joint owners of her accounts, if nothing else, for optics purposes.


Which bank did you deal with. The institute that my mom set up a lot of her stuff will not allow me to to have a bank card or bank on line. I actually have to go in for every transaction or write a check. I can not even set up automatic payment. This Taking a lot of mytime becuase I have to into the bank every other week.


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## Plugging Along (Jan 3, 2011)

I have a few more questions. 

She has physically recovered enough that she will be able to go home. While she was ill, they have diagnosed her with several mental illnesses in addition to dementia that were there prior to her illness. It has been chronic and on going, and now this confirms wha5 we had been trying to tell the doctors for years. The doctors have said it will only get worst. Our challenge is that she is in denial. She has irrational fears that people Re out to get her including my father and my other sibling. Hence the mess the finances are in. Essentially, most people who start to spenda a lot of time with her she starts to become suspicious of. I am one of the exceptions, for now. 

The several doctors have already declared her mentally incapable. Is my mother able to override the POA if she is deemed mental incapableeven though physically she looks fine?

Can she still withdraw her own money and access to her account if I have the POA? She is talking about gong into the banks and adding me in to everything, but can she even do that if she is mentally incapable? It’s a catch 22. Our lawyer just said, go give it a try, but we don’t want to trigger an episode.

Any experience or legal advice would be helpful.


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## Numbersman61 (Jan 26, 2015)

Plugging Along said:


> I have a few more questions.
> 
> She has physically recovered enough that she will be able to go home. While she was ill, they have diagnosed her with several mental illnesses in addition to dementia that were there prior to her illness. It has been chronic and on going, and now this confirms wha5 we had been trying to tell the doctors for years. The doctors have said it will only get worst. Our challenge is that she is in denial. She has irrational fears that people Re out to get her including my father and my other sibling. Hence the mess the finances are in. Essentially, most people who start to spenda a lot of time with her she starts to become suspicious of. I am one of the exceptions, for now.
> 
> ...


You are receiving bad advice from your lawyer. If she is mentally incompetent, she cannot make decisions. You have the POA and are responsible for administering her affairs in accordance with the terms of the POA and fiduciary responsibility that goes with it. Do not use it to create new joint accounts. No problem in consolidating accounts but remember your actions must be in accordance with the law and are subject to scrutiny by the Public Trustee and the courts if there is any suspicion that you are not in compliance.


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## Oldroe (Sep 18, 2009)

If your mom can do that the bank has no choice. Don't give info to bank about her medical situation.


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## Numbersman61 (Jan 26, 2015)

Oldroe said:


> If your mom can do that the bank has no choice. Don't give info to bank about her medical situation.


This is very bad advice. This can be characterized as elder abuse and possibly fraud. If the bank is suspicious of what is happening, there is a real possibility that they will contact the Public Trustee or the police. They have a responsibility to their client and can be sued in situations such as this.


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## Numbersman61 (Jan 26, 2015)

Elder abuse
http://www.nicenet.ca/tools-preventing-and-intervening-in-situations-of-financial-abuse-ontario


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## AltaRed (Jun 8, 2009)

Numbersman61 said:


> You are receiving bad advice from your lawyer. If she is mentally incompetent, she cannot make decisions. You have the POA and are responsible for administering her affairs in accordance with the terms of the POA and fiduciary responsibility that goes with it. Do not use it to create new joint accounts. No problem in consolidating accounts but remember your actions must be in accordance with the law and are subject to scrutiny by the Public Trustee and the courts if there is any suspicion that you are not in compliance.


It's a tough position for PA to be in. Dementia, etc. has various stages and the individual can appear to be (and might be) competent at times, and incompetent most of the time. The key point is if the medical profession has declared her incompetetent, then the POA overrides and the Attorney must do what is the grantor's best interests, not necessarily what the grantor (Mom) wants to do. At the very least, do not create a joint account and fund with assets that are from individual accounts.

As to Mom, on her own, going to the bank and accessing her own accounts with her PIN, without your presence, there is not much PA can do about that....except to have alerted the bank that Mom has been declared incompetent and that she should not be allowed to make financial decisions. It's an interesting question.... I will ask my sons (in banking) how they would handle it.


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## AltaRed (Jun 8, 2009)

Plugging Along said:


> Which bank did you deal with. The institute that my mom set up a lot of her stuff will not allow me to to have a bank card or bank on line. I actually have to go in for every transaction or write a check. I can not even set up automatic payment. This Taking a lot of mytime becuase I have to into the bank every other week.


That is technically correct to my recollection. A bank will normally not give a POA online or ATM access because they need to 'ascertain' that the person actually doing the transactions is indeed the POA. An individual branch MAY let that bit of oversight go IF the family (grantor AND POA) are well known to the branch AND if the POA also has their business with the branch. IOW, the POA simply continues to use the grantor's online access information. The best things I can advise: 1) put as much stuff on auto-debit as you can, 2) see what concessions the branch will give you to handle some stuff remotely, e.g. dollar limits on financial transactions such as Bill Pay only, monetary ceiling, etc.

If you have not already done so, her credit cards should have already been cancelled... or very limited in credit amount.


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## Plugging Along (Jan 3, 2011)

Oldroe said:


> If your mom can do that the bank has no choice. Don't give info to bank about her medical situation.


I am confused. Are you saying tha5 even though my mother has been deemed mentally incompetent (we asked for more than a second and third opinion and bought in specialist to if there was any treatment), we shouldn’t tell the Bank? Or yo7 mean the bank has to listen to her even if she is deemed incompetent. 



Numbersman61 said:


> This is very bad advice. This can be characterized as elder abuse and possibly fraud. If the bank is suspicious of what is happening, there is a real possibility that they will contact the Public Trustee or the police. They have a responsibility to their client and can be sued in situations such as this.


This is my challenge. I do understand why the banks have this duty, but I am just trying to help my parents. My mother, is her worst enemy. 


Numbersman61 said:


> Elder abuse
> http://www.nicenet.ca/tools-preventing-and-intervening-in-situations-of-financial-abuse-ontario


This is what I a man most concerned about, any person that know me or my family in real life would know that we have nothing but my parents best interests in mind and however, looking at these types of lists, some of them are concerns. Based the list.

1. Changes in living arrangements, such as previously uninvolved relatives or new friends moving in, with or without a senior’s permission. This is going to be a change for my parents, as they are no longer able to take care of them sel es long terms, so we will be looking at assisted living. My dad is on board, my mom looks at this as throwing her into a home (culturally she she always felt this)

2. Unexplained or sudden inability to pay bills
My dad can’t pay bills because my mom locked him in it of accounts, which is what I am trying to fix.

3. Unexplained or sudden withdrawal of money from accounts
I worry this is what t(e banks will think if I start consolidating.

4. Poor living conditions in comparison with the seniors’ assets
My parents have always been frugal, but when I went to check on their place, the up keep has not been done except wha5 my sibling does, and the hoarding has gotten worse. Hence wh6 we don’t think they can stay there any more. 

5 .Changes in banking patterns due to pressure
Not due to pressure, but my mom may feel this. 

6.Changes in the senior’s appearance
She had a stroke

7. Controlling a senior’s spending
We don’t think she can manage any more, so 8 am trying to control it. She had been gambling too, I jus5 flong undo this out looking at the statements. 

8. Confusion or lack of knowledge about financial situation and signing of legal documents
She is confused. 

9. Being forced to sign multiple documents at once &Being coerced into a situation where you are over worked and underpaid
Okay here

10. Unexplained disappearance of possessions (lost jewellery or silverware)
My mother has been saying this that people are stealing from her. We have found the stuff that has been stolen hidden while she forgot. Ei. We found expensive hand creams hidden under the grates in the BBQ, but she swears they were stolen. 

11. Changes in a senior’s Power of Attorney
That’s what is happening now with me 

12. Necessities of life denied or not provided by a senior’s Power of Attorney (food, medication, assistive devices)
She has the best care we can find so no problems here,

13. Denying a senior his or her right to make independent financial decisions
This is exactly what we are doing. 

Looking at this list it concerns me.


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## Plugging Along (Jan 3, 2011)

AltaRed said:


> It's a tough position for PA to be in. Dementia, etc. has various stages and the individual can appear to be (and might be) competent at times, and incompetent most of the time. The key point is if the medical profession has declared her incompetetent, then the POA overrides and the Attorney must do what is the grantor's best interests, not necessarily what the grantor (Mom) wants to do. At the very least, do not create a joint account and fund with assets that are from individual accounts.
> 
> As to Mom, on her own, going to the bank and accessing her own accounts with her PIN, without your presence, there is not much PA can do about that....except to have alerted the bank that Mom has been declared incompetent and that she should not be allowed to make financial decisions. It's an interesting question.... I will ask my sons (in banking) how they would handle it.


This is the area I am torn, what my mom wants is not what is best for her. I would to consolidate the funds into the joint account she has with my father, where she siphoned the $ into her own individual. I personally,don’t want to be on it. I also want to change her beneficiary in her rif which is currently me to my father which is better for a tax purpose, and would actually show less of a gain to me. 

Her dementia just comes and goes. It was like Jekyl and Hyde yesterday. She was perfectly fine for an hour in tow the conversation, then I saw her turn mid conversation and she was in tears saying that everyone is stealing from and that my father is having an affair because he left to go to the washroom. Then fine again. It is really hard to be there.


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## AltaRed (Jun 8, 2009)

Plugging Along said:


> Looking at this list it concerns me.


Almost all of that list apply to situations where there is no POA in force and the senior is being coerced. The beauty of a POA is that it protects (against accusations of most of the above) while at the same time creating the responsibility of doing what is in the Grantor's best interest.

1. With a POA (Personal Directive) for health and living matters, the POA has full authority to do what is best for the senior. This kind of POA is not the same document as the POA for financial and legal matters. If you don't have that for your Mom, your Dad still can support insistence of your Mom living elsewhere AND so can siblings/prodigy with the support of the family physician. The issue is when such things are done somewhat covertly, rather than with medical profession input.

2. Your Mom cannot lock your Dad out of any joint account so I don't understand. She could drain a joint account though if she still has online access. The bank shouldn't be allowing her to do that in person if you are the POA and they know your Mom is mentally incompetent.

3. Not if you use electronic transfers from an account in her name to another account in her name. That is full POA authority

4. That is a tough one. It is hard to force a change until there is a potential danger to their health. That said, you have POA on your Mom and can move her to 'better' living conditions against her will. That is what a Personal (Health) Directive empowers you to do too.

5. Another tough one being accused by an incompetent person. Clearly you have the POA authority and with her being declared mentally incompetent, it is understood she cannot make rational decisions or judgement. One of those 'grit your teeth' and put up with it and get moral support from other family members.

6. Not an elder abuse issue as she has a recorded mental incapacitation. All you can do is solicit help for personal hygiene, maybe from Community Health services.

7. This is where you, with bank help, needs to eliminate her access to her accounts. This will not be elder abuse because you have POA or a mentally incompetent person.

8. Not an elder abuse issue wtih POA over a mentally incompetent person.

10. Not an elser abuse issue with a mentally imcompetent person.

11. But there has not been a change in POA has there? You are the designated POA.

13. Not an elder abuse issue with a metntally incompetent person.

In summary, the POA and declaration of mental incompetence is your friend and your protection!


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## AltaRed (Jun 8, 2009)

Plugging Along said:


> This is the area I am torn, what my mom wants is not what is best for her. I would to consolidate the funds into the joint account she has with my father, where she siphoned the $ into her own individual. I personally,don’t want to be on it. I also want to change her beneficiary in her rif which is currently me to my father which is better for a tax purpose, and would actually show less of a gain to me.
> 
> Her dementia just comes and goes. It was like Jekyl and Hyde yesterday. She was perfectly fine for an hour in tow the conversation, then I saw her turn mid conversation and she was in tears saying that everyone is stealing from and that my father is having an affair because he left to go to the washroom. Then fine again. It is really hard to be there.


I see... She moved joint account funds to her own personal account. Depending on whether this happened before or after she was declared mentally incompetent, the bank should not have allowed it (if after), or if they didn't know about mental incompetetence then, they should consider reversing it.... I don't think as POA, you can change the beneficiary on her RRIF from you to your father, since this goes against what she wanted if she was mentally competent when she did it. There might be something in her Will too that could contradict that (if RRIF beneficiary is stated in the Will). Others like Twa2w or Muhang are better suited to respond.

Yes, the various stages of dementia. She must be at Stage 2 or 3 now. My wife and especially her sister had to go through all 4 stages with their father over the course of perhaps 5 years (not sure, but felt like 10). Pure hell.


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## Mukhang pera (Feb 26, 2016)

Plugging Along said:


> The several doctors have already declared her mentally incapable. Is my mother able to override the POA if she is deemed mental incapableeven though physically she looks fine?
> 
> Can she still withdraw her own money and access to her account if I have the POA? She is talking about gong into the banks and adding me in to everything, but can she even do that if she is mentally incapable? It’s a catch 22. Our lawyer just said, go give it a try, but we don’t want to trigger an episode.
> 
> Any experience or legal advice would be helpful.


I won't speak for Alberta law, but a real good guess would be that it's not that much different from here in BC.

Here, it's not sufficient (which is a good thing, in my view) for some random doctor to shout from his office window "I declare this woman incompetent!". Here, mum would of course retain autonomy over her own accounts and she could rip up the POA if so minded.

Here, in order for mum to be divested of power over her own affairs, there would have to be an order made under the Patients Property Act. The application must be supported by the affidavits of 2 physicians. The relevant provisions read thus:

*Application and service of notice*

2 (1) The Attorney General, a near relative of a person or other person may apply to the court for an order declaring that a person is, because of

(a) mental infirmity arising from disease, age or otherwise, or
(b) disorder or disability of mind arising from the use of drugs,
incapable of managing his or her affairs or incapable of managing himself or herself, or incapable of managing himself or herself or his or her affairs.
(2) Subject to subsection (3), a notice setting out the time and place of the application must be served personally on the person who is the subject of the application not less than 10 days before the date of the application.
(3) On an application under this section, the court may
(a) direct that any person be served with notice of the application, or
(b) dispense with service on any person of notice of the application.
(4) Despite subsection (3), unless the court is satisfied that service on the person who is the subject of the application would be injurious to that person's health or would for any other reason be inadvisable in the interests of that person, the court must not dispense with service on that person.
*Hearing of application*
3 (1) If, on

(a) hearing an application, and
(b) reading the affidavits of 2 medical practitioners setting out their opinion that the person who is the subject of the application is, because of
(i) mental infirmity arising from disease, age or otherwise, or
(ii) disorder or disability of mind arising from the use of drugs,
incapable of managing his or her affairs or incapable of managing himself or herself, or incapable of managing himself or herself or his or her affairs,
the court is satisfied that the person is, because of
(c) mental infirmity arising from disease, age or otherwise, or
(d) disorder or disability of mind arising from the use of drugs,
incapable of managing his or her affairs or incapable of managing himself or herself, or incapable of managing himself or herself or his or her affairs, it must, by order, declare the person
(e) incapable of managing his or her affairs,
(f) incapable of managing himself or herself, or
(g) incapable of managing himself or herself or his or her affairs.
(2) The court may, on hearing an application under this section and reading the affidavits described in subsection (1), direct an issue to be tried, and in that event the following provisions apply:
(a) the question in issue is whether the person who is the subject of the application is, because of
(i) mental infirmity arising from disease, age or otherwise, or
(ii) disorder or disability of mind arising from the use of drugs,
incapable of managing his or her affairs or incapable of managing himself or herself, or incapable of managing himself or herself or his or her affairs;
(b) this Act applies to the issue and the trial of it;
(c) the Supreme Court Civil Rules apply;
(d) the court must
(i) dismiss the application, or
(ii) by order, declare that the person who is the subject of the application
(A) is incapable of managing his or her affairs,
(B) is incapable of managing himself or herself, or
(C) is incapable of managing himself or herself or his or her affairs.


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## AltaRed (Jun 8, 2009)

If PA has an Enduring POA, why would she have needed to go to court? Except.... a situation we didn't have to face, i.e. to 'prevent' our mother from acting for herself. If PA has to 'prevent' her Mom from acting, would a court have to decide that? Why not just medical affadavits since that is the purpoe of an Enduring POA to begin with... stay away from the courts.


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## Numbersman61 (Jan 26, 2015)

If Plugging Along lives in Alberta here are links to some resources
http://www.humanservices.alberta.ca/guardianship-trusteeship.html
https://www.alberta.ca/alberta-supports.aspx


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## Mukhang pera (Feb 26, 2016)

AltaRed said:


> If PA has an Enduring POA, why would she have needed to go to court? Except.... a situation we didn't have to face, i.e. to 'prevent' our mother from acting for herself. If PA has to 'prevent' her Mom from acting, would a court have to decide that? Why not just medical affadavits since that is the purpoe of an Enduring POA to begin with... stay away from the courts.


I am not suggesting there is any compelling _need_ to involve the courts. But, if the concern is that mummy might run amok and do some strange things inimical to her own interests, then getting a court declaration of incompetence and the appointment of a committee over the person and the estate is the best way to ensure mummy does not sink her own ship.

An enduring POA endures if the grantor becomes incompetent. But _enduring_ is not the same thing as _irrevocable _and, moreover, it does not usurp the grantor's ability to manage their own affairs. Giving someone a POA does not mean that you are abdicating complete control of your affairs to that person. The POA and personal autonomy can co-exist. A court finding of being mentally incompetent to manage one's affairs strips the patient of any residual ability to handle their own finances and vests that ability in their committee. A court appointment can be as committee of the person, as well as their estate. That means that the committee gets to decide where the patient lives, etc., in addition to having control over their financial affairs.

The regime contemplated by the Patient Property Act, while less than ideal, ensures some independent oversight. Otherwise, we have an open sesame to elder abuse. We can imagine an ill-motivated relative talking mummy into granting an enduring POA. Said relative then gets a friend or relative who happens to be a physician to write a note on a prescription pad saying “To Whom It May Concern: It is my professional opinion that mummy is off her scone and incompetent.” That gets handed around to a few banks, etc. and mummy gets swindled.

The scenario posited above should be one that few families need guard against, one would hope. Indeed, there should be no need to involve the courts, or doctors (except for medial care) or anyone else. What needs to be handled gets competently, quietly and judiciously handled by close relatives.


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## AltaRed (Jun 8, 2009)

Mukhang pera said:


> I am not suggesting there is any compelling _need_ to involve the courts. But, if the concern is that mummy might run amok and do some strange things inimical to her own interests, then getting a court declaration of incompetence and the appointment of a committee over the person and the estate is the best way to ensure mummy does not sink her own ship.
> 
> An enduring POA endures if the grantor becomes incompetent. But _enduring_ is not the same thing as _irrevocable _and, moreover, it does not usurp the grantor's ability to manage their own affairs. Giving someone a POA does not mean that you are abdicating complete control of your affairs to that person. The POA and personal autonomy can co-exist. A court finding of being mentally incompetent to manage one's affairs strips the patient of any residual ability to handle their own finances and vests that ability in their committee. A court appointment can be as committee of the person, as well as their estate. That means that the committee gets to decide where the patient lives, etc., in addition to having control over their financial affairs.


Okay, I get that. For the most part, the Enduring POAs I've seen (and have done) are revocable for the simple reason that if it is done fairly early in life, as compared to teetering on incompetence, the Grantor wants a way to yank the rug out (change POA). That is beyond what my bro and I had to deal with in AB (mother was not sinking her own ship). Not sure what my wife and her sister had to do with their father in Quebec but think by the time he was paranoid about spooks around every corner and people trying to do him harm, he was too far long gone to actually use an ATM card, etc. 

Unless I missed it, we don't know the specifics of PA's situation. As I understand it, courts are quite cautious in essentially declaring a person at risk to oneself.


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## twa2w (Mar 5, 2016)

Just want to catch up on this thread and make a couple of comments.
Some banks do allow bank card and Internet access under a POA. This is a separate card and access than the grantor of a POA so the bank knows who is accessing the account. If the account holder is declared incompetent then their access is removed and only the POA will have access.
Other banks either do not have this functionality, or don't allow it, or the branch staff are not aware of it.

If the POA is a springing POA, once the POA has been activated, by the springing event, the account owner is denied access to the account until it is established that the owner is competent again. This would be challenging in the event of dementia.(often these springing events would be 2 medical professionals attesting to the incapacity in writing)

In this case it appears the POA is enduring so there is no evidence of incapacity required to be able to act on the POA. in many cases the bank may not even be aware of the incapacity. In order to prevent access to the account by the account holder in a dementia situation the POA would have to present proof to bank. The branch would submit this to their legal department for opinion. The lawyers would assess based on the documentation and provincial statutes.

In some cases, as mentioned by mukhang, the POA may have to apply through the courts for committee status or guardianship. Although I would think this is rare in the presence of a POA. 
In broad terms,a guardian generally looks after the welfare of an incompetent person while a committee is responsible for financial affairs. 
For those following the thread a committee is usually one person and is pronounced differently, caw mitt tay, than the usual committee that we think of.
You will sometimes see a person who can look after themselves and work but cannot look after their money. Some mentally challenged adults will have a committee in this situation especially if they have access to large sums through an inheritance. In some cases the committee will allow the person a small account for some control over day to day spending for coffee and gum sort of thing.

Sorry to drift the thread.

To confirm AR's comment, a PIA cannot change a beneficiary designation. 

To make bills autopay, the POA would normally present the PIA to, say the utility company, with the account holders billing and bank information. The bank does not really have anything to do with this. This may entail some running around and dealing with bureaucracy. If the intention is to put bills through the parents joint account then perhaps the father vould fo some of this or be present at the utility vompany to do this.

I can't remember what province the OP is in and am not sure what he can do to prevent his mother from accessing her accounts, or indeed even reboking the POA, other than having her declare an incompetent adult by the courts. Many people would feel a stigma or sense of shame about this.

Mukhang would be better prepared to speak to this than I would.


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## Mukhang pera (Feb 26, 2016)

AltaRed said:


> Unless I missed it, we don't know the specifics of PA's situation. As I understand it, courts are quite cautious in essentially declaring a person at risk to oneself.


That is why I am speaking in general terms and setting out some of the relevant BC law, which is similar that that of many other provinces. I don't think PA has set out much in the way of particulars or a request to address same.




twa2w said:


> I can't remember what province the OP is in and am not sure what he can do to prevent his mother from accessing her accounts, or indeed even reboking the POA, other than having her declare an incompetent adult by the courts. Many people would feel a stigma or sense of shame about this.
> 
> Mukhang would be better prepared to speak to this than I would.


I would say you are correct twa2w. Without a court finding of incompetence, a POA cannot be used to override the mother's wishes. In the eyes of the law, she remains competent until a court orders otherwise. 

Something else to keep in mind when we start labelling people as mentally incompetent means they also lose the ability to change their will. Sometimes we have family members seeking a retroactive declaration of incapacity because of a changed will. One case with which I am familiar involved M., a successful "investor". Through marriage, divorce and another marriage, M. had 2 families, so to speak. Kids with both wives. When he re-wrote his will and estate plan to benefit one family less, they went to court, asking to have him declared nuts so the new will and estate plan would be rendered nugatory and his "old will" would be revived. The only fly in the ointment was the old guy refused to play ball. Competent enough to refuse to be medically examined for mental status. In BC, the law cannot force that. As twa2w suggested, "Many people would feel a stigma or sense of shame about this." That was this fellow. He resented anyone suggesting he was incompetent.

I bought land from M. on a couple of occasions. We knew each other for a long time, and he thought I could use some investment advice. One item of advice was captured in the words: "You always _buy_ land; you never _sell_ land." I think he was onto something. He agreed to sell to me because he was then in his 80s and he was sitting on about 13,000 acres of real estate, mostly on Vancouver Is. and the gulf islands. He said he was at a stage of life and investing when maybe some of the rules could be relaxed a bit. He has now passed on and the squabbles over the estate have resulted in the whole kit and caboodle being listed for sale for $82 million. Perhaps JAG or one or 2 of the serious RE investors here on CMF will pick it up, at least if possible to buy at half of market value. That might happen, given the hard feelings at play among the stakeholders.

I mentioned before my view that, in most cases, what needs to be handled gets competently, quietly and judiciously handled by close relatives. Sometimes mistrust and bad feelings creep in, as in the example digested below, following by a link to the full judgment:

Balducci v. Valeria, 2016 BCSC 2333

MENTAL INCOMPETENCE — Committees — R and E having joint power for BV, their 92 year old mother, with E assuming most of the POA responsibilities — E and his wife residing with BV and providing care services until BV moved into care facility in 2009 — E and his wife continuing to reside in BV’s home rent free, an arrangement countenanced by BV, and wife visiting BV every day — R and E coming into conflict with R objecting to E’s occupation of BV’s home and accusing him of “stealing” BV’s money — BV suffering from increasing dementia and R and E applying for declaration of incapacity with each seeking to be appointed her sole committee — Court granting declaration of incapacity with respect to management of BV’s affairs, but not her person, and appointing E as committee for that purpose — Although E’s record-keeping left much to be desired, evidence falling far short of establishing any wrongdoing or deliberate misconduct — While BV’s preference was that both R and E jointly manage her affairs, that was not possible in light of R’s hostility to E — Given the history of E’s relationship with BV and their close geographical proximity, it was more appropriate and in BV’s best interests that E act as her committee — In view of E’s lackluster record-keeping, court directing that he provide the Public Guardian and Trustee and R with an annual accounting and not dispose of or encumber any of BV’s assets without further order.

http://www.courts.gov.bc.ca/jdb-txt/sc/16/23/2016BCSC2333.htm


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## Oldroe (Sep 18, 2009)

I feel for you. As you can tell by some knee jerks everybody is looking after themselves.

We started paying our parents bills 5 years ago and only want the best for my mom. As a family we don't fight and that is huge.

Good Luck.


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