The 2nd agent took my mom to open up her own bank account and we had her SS and retirement changed over to her new account. He was in jail with possibility of being sent to prison. Well, he was released and now home so he has opened a new account with both his and my mom's name. Since my mom gave them permission to speak to her husband, her SS and retirement will be sent over to their new account. Does he actually have rights to do this if someone has POA?
I’m not a lawyer but here’s how I would frame this:
1-When your Mom signed a durable financial POA, (depending on how it was written, and most cases) she granted you the power to make financial decisions on her behalf/as if you were your mom. By itself, this didn’t mean she couldn’t still make decisions for herself. The rights were *extended* to you, not handed over to you. (You are expected to use them at her direction , or at least in her interest , depending on whether she can make decisions herself).
2-Because it’s a durable power of attorney, that extension of rights continues at the same level even if she loses those powers of decision making herself.
3-And here’s the key point: right now, does she still have financial decision making powers (capacity/competence) herself? She has dementia But we don’t know much about it.. If she does have the ability to make her own financial decisions then certainly she can enter into a joint bank account. And certainly she can redirect her payments for SS and retirement to this account.
However, if she doesn’t have decision making capacity anymore, then as I understand it she can’t enter a new agreement to have a joint bank account, and she can’t redirect her payments either, even if she “gave her Social Security number on the phone”. This in my view is the key issue – not whether the spouse has some powers (which honestly I don’t think he does but I don’t think it’s relevant). Any actions she allegedly took would be invalid, because she can’t take/direct them.
This is messy. It has to do with retroactive second-guessing whether someone is competent to make decisions. And the horse has already left the barn— The money has already been redirected. If you really think that she doesn’t have decision-making capacity, and that this can be well established at the time she allegedly entered into these agreements, then you may need a lawyer involved.
On a practical level, as another poster said, you yourself (under your authority of POA) can undo these two actions, just as she could herself – you can redirect the money to another account, or Potentially take her name off the joint account. But this is a tug-of-war with the husband, and you need to be sure that she doesn’t have capacity and that you’re acting in her best interest before you do so. Plus banks etc. are a little bit leery of people showing up waving a POA and overriding the principal’s decisions, as they should be.
So unfortunately I think a lawyer would be required first.
My sense of the situation.
So how did this "second agent" (whatever and whomever THAT is) get SS funds transferred to a new account.
In order to function with SS you must be a payee.
On to "second agent". What is a second agent?
There is a POA and then there is the "second" or "alternate" who takes over when a first agent resigns or is dead/incapacitated.
I find your whole question so very confusing. If you are POA I cannot understand how someone gets out of jail and takes your demented mom and gets his name on her accounts.
If you are POA you should be taking your papers of proof to the bank to find out what they are doing with your principals funds.
Time to see an attorney or call APS to investigate, because I am really lost in terms of advising you at all. You POA pays for expert advice when needed, and I think now you are needing expert advice.
POA gives one the right, if the principal is incompetent, to act for the principal by going, with POA documents, to banks and other financial entities to set things up so that they are safe from the predatory practices of others.
If you have not done this then you are really POA in name only.
It's time now to see an attorney. Your POA pays for expert advice and that's what you need now.
If Mom & her Husband live together this will keep happening over & over.
Sounds like you need some good legal advice.
Just read ur profile. With Dementia, Mom could not have given her spouse permission. But then, again, he is her spouse.
Every situation (and perhaps State requirements) are different.
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