A question about durable power of attorney

My father is in hospice care at the moment. He’s unconscious and has only a few days or weeks left.

Fortunately he prepared for this in advance. All of his affairs are in order and he left us with a signed and notarized durable power of attorney allowing my mother and two of us kids to act as attorneys-in-fact while he is incapacitated.

We’d assumed that we didn’t have any more business to resolve until his actual death. However, today a check arrived from the IRS. Both of my parent’s names are on the check, but obviously my father is unable to sign.

Because of the durable power of attorney my mother LEGALLY has the authority to cash the check. But I’m not sure what we should do PROCEDURALLY at this point. Should she go to the bank and present the check along with the power of attorney document? Should she contact the IRS?

If it were a more serious matter I’d contact the law firm that drew up the papers and ask for guidance. But that seems like overkill for something as simple as cashing a check.

Yes, go to the bank. She can present the power and become a signatory on all of his accounts, and then she can deposit the check.

Thanks for the info. Is this something she should make a point of doing *before *he dies? Obviously her first priority right now isn’t trotting down to the bank to cash a check, but if it will mean substantially less trouble down on the line it might be worth it.

I am not your lawyer, you are not my client, etc.

When you present the power of attorney document let them photocopy it, but keep the original yourself.

As for death, the power of attorney document becomes null and void. At that point the person’s will or/and trust and/or survivorship accounts and/or beneficiary designations and/or the statutory intestate succession rules take effect. The POA document becomes just a piece of paper.

I assume she’s already a signature on the account, so I don’t see any difficulty. But I recently had POA for my aunt and the bank made me get their own forms notarized, in addition to the POA, in order for me to be able to sign checks for her. If my aunt had been able to come to the bank, they could have witnessed the signature without a notary, but she wasn’t well enough for that.

A Power of Atty can be revoked, you see, and the bank can be caught in between, honoring a POA that they have not been informed was revoked. So they require their own forms to be on file at the bank and if the principle wants to revoke that, they have to do so directly with the bank. It covers their backside.

This would not apply to your mother, I’d guess. If she’s already a signature, she might even be able to deposit the check into their shared account with just her signature, without a POA. But for someone not on the account, especially for signing checks, the bank might require more than the general revocable power of attorney.

It wasn’t something I was expecting, and it caused a bit of running around to fix.

My mother would be depositing the check into the joint account she shares with my father.

Is there any reason she should make a point of depositing it NOW, while he’s still alive?

Right now she’s focused on being with him in the time he has left. Unless we have a good reason I don’t really want to drag her off to deal with the bank right now.

You could probably deposit it for her if the facts are as you say. I’ll spare you the legal mumbo jumbo, but banks are permitted to accept checks for deposit without signature as long as the payee on the check is the same or substantially similar to the name(s) on the account.

In case you are interested, the authority for this is: UCC 3-404(c): http://www.law.cornell.edu/ucc/3/article3.htm#s3-404

CA version of UCC: http://www.leginfo.ca.gov/cgi-bin/displaycode?section=com&group=03001-04000&file=3401-3420

Banks actually do not have the authority to do that IMHO, so long as the POA complied with the state statutory requirements. The bank has no exposure with regard to a revoked POA that the bank is not aware has been revoked. The burden is on the person doing the revoking to inform the bank, and the person who did the revoking has a cause of action against the ex-poa for violating his fiduciary duty toward the principal. Banks sometimes like to make their own law. The problem is that if the bank wants to say you have to jump through their hoops, your choices are to change banks or to jump through their hoop, even if the hoop is legally unnecessary.

The only reason to deposit the cheque is to avoid it being administered as part of the estate. If it’s deposited into the joint account prior to death, then the money in that account becomes your mother’s by right of survivorship. If not cashed, I could see an argument being made that your father had a 1/2 interest in that amount of money (it’s made out to both of them?), so 1/2 would have to flow through the estate and be delayed by probate and all of that stuff, and possibly be taxed.