Understanding Power of Attorney vs. Joint Account Ownership

Understanding Power of Attorney and Joint Accounts

The Role of Attorney-in-Fact in Power of Attorney

“As you know, a power of attorney (POA) allows another person, the Attorney-in-Fact (AIF), to conduct business on behalf of the principal. The POA authorizes the AIF to sign for and on behalf of the principal.”

Limitations of Power of Attorney in Bank Accounts

A person with Power of Attorney for their parents can’t actually “add” the POA to their bank accounts. However, they may change bank accounts to be jointly owned. There are some pros and cons of doing this, as discussed in the article “POAs vs. joint ownership” from NWI.com.

Pros and Cons of Power of Attorney vs. Joint Ownership

Access and Signing Authority with Power of Attorney

The POA permits the agent to access their parent’s bank accounts, make deposits and write checks. However, it doesn’t create any ownership interest in the bank accounts. It allows access and signing authority.

Joint Ownership and Shared Authority

If the person’s parent wants to add them to the account, they become a joint owner of the account. When this happens, the person has the same authority as the parent, accessing the account and making deposits and withdrawals.

Fiduciary Responsibility Differences

However, there are downsides. Once the person is added to the account as a joint owner, their relationship changes. As a POA, they are a fiduciary, which means they have a legally enforceable responsibility to put their parent’s benefits above their own.

Inheritance and Ownership Considerations

Account Distribution after the Owner's Death

As an owner, they can treat the accounts as if they were their own and there’s no requirement to be held to a higher standard of financial care.

Sole Ownership in Joint Accounts after Death

Because the POA does not create an ownership interest in the account, when the owner dies, the account passes to the surviving joint owners, Payable on Death (POD) beneficiaries or beneficiaries under the parent’s estate plan.

Addressing Potential Risks and Vulnerabilities

Joint Accounts and Creditor Exposure

If the account is owned jointly, when one of the joint owners dies, the other person becomes the sole owner.

Choosing Between Power of Attorney and Joint Ownership

Another issue to consider is that becoming a joint owner means the account could be vulnerable to creditors for all owners. If the adult child has any debt issues, the parent’s account could be attached by creditors, before or after their passing.

Implementing a Power of Attorney for Bank Accounts

Naming Payable on Death Beneficiaries

Most estate planning attorneys recommend the use of a POA rather than adding an owner to a joint account. If the intent of the owners is to give the child the proceeds of the bank account, they can name the child a POD on the account for when they pass and use a POA, so the child can access the account while they are living.

Providing the Bank with a Copy of the POA

One last point: while the parent is still living, the child should contact the bank and provide them with a copy of the POA.

Resolving Issues while the Parent is Still Living

This, allows the bank to enter the POA into the system and add the child as a signatory on the account. If there are any issues, they are best resolved before while the parent is still living.

About the Author

Benjamin Long

Benjamin E. Long, a leading attorney at Schlagel Long, LLC, situated in Olathe, KS, has developed a niche expertise in the intricate areas of Power of Attorney (POA) and joint account management in estate planning. His practice is deeply rooted in the belief that the true essence of estate planning goes beyond mere financial wealth. It's about preserving and transferring the totality of one’s life achievements, including intellectual, spiritual, and personal values.

In light of his latest informative blog post, "Do You Need Power of Attorney if You Have a Joint Account?", Benjamin offers specialized guidance on the complexities and implications of POA and joint account ownership. He adeptly navigates the subtle nuances between an Attorney-in-Fact’s role in a POA and the rights and responsibilities entailed in joint account ownership. His expertise extends to addressing the limitations of POA in bank accounts, the fiduciary responsibilities of joint ownership, and the critical aspects of account distribution after the owner's death.

Benjamin’s approach is personalized, ensuring that his clients understand the pros and cons of POA versus joint ownership. His proficiency lies in explaining the access, signing authority, and fiduciary responsibilities associated with these legal tools, and in providing strategic advice on how to best protect family interests and assets.

Educationally, Benjamin is a proud alumnus of Kansas State University, where he earned a B.S. in Biology, and Washburn University School of Law, where he obtained his J.D. with a Certificate in Advocacy. His accolades include being named a Super Lawyer Rising Star and receiving the Martindale-Hubbell Client Distinction Award.

With a commitment to both his practice and teaching, Benjamin serves as an adjunct faculty member at Washburn Law School and as the head coach of the Kansas State University Mock Trial Team. When not engaged in legal matters, he enjoys spending time with his family in Olathe, Kansas.

Benjamin E. Long, Kansas Estate Planning Attorney

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