[WSBAPT] Power of Attorney/Revocable Trust

Thu Nov 1 12:22:17 PDT 2018

I agree with Chris and Heather here.  The agent under the dpoa does not always have authority to act as trustee.

In order for the agent to act as trustee, two conditions must be met.  First, the trust must authorize the trustee to delegate authority.  You have to read the trust.  Some do, and some don't.

Second, the dpoa must expressly grant to the agent the power to "[e]xercise fiduciary powers that the principal has authority to delegate." 11.125.240(1)(g) (emphasis added).   The language Steven quotes does not appear to be sufficient.

If the trust does not authorize the trustee to delegate his/her authority as trustee or the poa does not expressly grant the agent the authority to exercise fiduciary powers, then the agent under the trustee's poa has no authority over the trust (at least by virtue of being agent under dpoa for trustee), and the bank is right, and you may pay the bank's fees.

Even if the trust authorizes the trustee to delegate, and even if the poa authorizes exercise of fiduciary duties, why not just have the successor trustee access the bank account and pay the bill?  Like Chris said, easier than fighting the bank.

________________________________
Ronald F. St. Hilaire · Attorney at Law
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[2771A5AE]

From: wsbapt-bounces at lists.wsbarppt.com <wsbapt-bounces at lists.wsbarppt.com> On Behalf Of Heather deVrieze
Sent: Thursday, November 1, 2018 11:39 AM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
Subject: Re: [WSBAPT] Power of Attorney/Revocable Trust

While I am equally frustrated by banks and other financial institutions refusing to accept valid Powers of Attorney, and have threatened and gotten awards of fees in such cases myself, I advise caution here.

Trusts are occasionally created to keep the principal who may have diminished capacity from continuing to exert control over assets. Trusts generally have their own governing document which matters. Why a Personal Representative can't automatically access assets in a living trust applies equally to agents under powers of attorney.

Even if it is a revocable trust, the terms of the trust govern the assets in the trust, the Trustor's access to it and how funds may be managed or withdrawn, revocation and other matters related to trust property. A valid power of attorney likely cannot override those provisions, and unless the trust authorized delegation of fiduciary authority, the trustor's authority as trustee does not transfer to the agent named under the power of attorney, but, according to the trust provisions.

Heather

Heather S. de Vrieze
Attorney-at-Law
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3909 California Avenue SW
Seattle, WA 98116-3705
(206)938-5500
heatherd at westseattlelaw.com<mailto:heatherd at westseattlelaw.com>
www.westseattlelaw.com<http://www.westseattlelaw.com/>

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From: wsbapt-bounces at lists.wsbarppt.com<mailto:wsbapt-bounces at lists.wsbarppt.com> <wsbapt-bounces at lists.wsbarppt.com<mailto:wsbapt-bounces at lists.wsbarppt.com>> On Behalf Of Rob Wilson-Hoss
Sent: Thursday, November 01, 2018 10:32 AM
To: 'WSBA Probate & Trust Listserv' <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
Subject: Re: [WSBAPT] Power of Attorney/Revocable Trust

And in the TEDRA ask for reasonable attorney fees against the bank(s).

Robert D. Wilson-Hoss
Hoss & Wilson-Hoss, LLP
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From: wsbapt-bounces at lists.wsbarppt.com<mailto:wsbapt-bounces at lists.wsbarppt.com> [mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of Diane J. Kiepe
Sent: Thursday, November 01, 2018 10:07 AM
To: 'WSBA Probate & Trust Listserv'
Subject: Re: [WSBAPT] Power of Attorney/Revocable Trust

Hi Steven,

This exact situation is a big reasoning for WA new POA law.  Financial institutions can be very difficult to work with.  I had one turn down a POA that I did because their institution was not specifically made, an other one turn us down because it wasn't on their form.  In the later case a phone call, with the suggestion that getting a court order and a news story on air shouldn't be necessary.

If the POA is a springing form, and your client did not provide a letter that "triggered" her authority that could be creating problems.  That shouldn't be difficult to get under the circumstances.  Also, make sure your client doesn't speak to someone at the first level, insist on management and if management doesn't help, ask for their legal counsel's number.

Last resort may be a TEDRA action against the institution, who may not appear, getting court order that the POA, if properly effective, be honored.

It is definitely an issue that hopefully  the new state provides answers to in the form of the Agents Affidavit.

Best,

Diane J. Kiepe

Diane J. Kiepe, Attorney at Law
Douglas * Eden
717 W. Sprague Ave., Suite 1500
Spokane, WA  99201
Phone:  (509) 455-5300
Fax:        (509) 455-5348
djkiepe at depdslaw.com<mailto:djkiepe at depdslaw.com>

From: wsbapt-bounces at lists.wsbarppt.com<mailto:wsbapt-bounces at lists.wsbarppt.com> [mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of steve mcconnell
Sent: Wednesday, October 31, 2018 3:25 PM
To: wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>
Subject: [WSBAPT] Power of Attorney/Revocable Trust

Attorney in fact pursuant to a POA prepared in 2013 pursuant to RCW 11.94 advises that several banking institutions holding accounts in the name of 101 year old principal's revocable living trust will not allow AIF to access those funds to allow her to pay principal's nursing home fees. I do not yet have the banks reasoning (according to client/AIF it is because AIF's name isn't on the account) but will likely speak with them tomorrow. The POA grants AIF broadest powers, including "all powers as an  absolute owner" and the power to "exercise the principal's right to distribute property in trust or cause a trustee to distribute property in trust to the extent consistent with the terms of the trust agreement". Revocable trust was created by principal for principal's benefit while living, including the right to the distribution of all principal and income. Any thoughts as to what the bank's arguments might be? This seems fairly straightforward to me so I'm having trouble understanding how multiple banks could be taking this position.

Thanks in advance.

Steven M. McConnell
Attorney at Law
144 Railroad Ave., Suite 308
Edmonds, WA  98020-4100
Tel:  (206) 783-0201
Fax: (206) 789-5199
Email:  smcconnelllaw at hotmail.com<mailto:smcconnelllaw at hotmail.com>

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