DPOA & Beneficiary

[Prosec]

Jurisdiction

Kansas

I have financial DPOA for my 93 yo mother w dementia. I am her beneficiary on her financial brokerage account w major bank. I am also sole surviving direct family member--son. I would like to transfer her account to another provider w/o any changes to terms.

I am being told by the receiving provider that I CANNOT as DPOA name myself as beneficiary unless I have specific amendment to DPOA allowing same. Given my mother's present mental status I would say that is not possible in regards to mental capacity.

So what am I missing here. I understand the admonition against changes BUT I am not making any changes to beneficiary; only changing the brokerage due to service issues.

So how do I defeat this interpretation by the brokerage which presently is barring me from transfer.

 

[army judge]

So how do I defeat this interpretation by the brokerage which presently is barring me from transfer.

I was in a similar position when my beloved mother was diagnosed with Alzheimer's disease.

There was lots of chatter and what iffing during the first three months.

As mother's legal guardian, I focused on spending as much time with mother as I could arrange. Mother hung on another three years, before she was called to her final home.

I'd spend six to eight hours each day, Sunday through Saturday reading to her, talking to her, comforting her. The last thing on my mind was how to disburse her and father's estate. Father had died two years before mother was diagnosed with Alzheimer's disease.

Every two or three days, mother's smile and small recollections would occur. Brother, I lived for those moments. Occasionally my wife would visit with us, as we looked at home videos and pictures from times we'd vacation with her and dad.

I'm choking up as I recall those dreaded, but also lovely days. Once in a while, mother appeared to regain her personality. She'd manage to play songs on her piano. The other residents would gather outside her door to listen, and sometimes sing.

Its not my place to tell you what to do. However, try forgetting the inheritance and just enjoy those special, last days with your mother. By the way, my mother was 94 when she passed on to glory.

I wish you and your mother the best as you navigate her illness. May the Good Lord bless and keep your mother during her days ahead.

 

[adjusterjack]

So how do I defeat this interpretation by the brokerage which presently is barring me from transfer.

Seems to depend on whether yuo were granted general powers or specific powers.

With general powers it appears that you can list the same beneficiary in the new account.

See 58-654(f)(5):

Kansas Statutes § 58-654 (2021) - General powers. :: 2021 Kansas Statutes :: US Codes and Statutes :: US Law :: Justia

Options:

1 - Show the statute to the know-nothing at the new brokerage.

If that doesn't work:

2 - Find another brokerage.

3 - Keep it where it is.

Of course, if you have specific powers, you may get the same response wherever you go.

 

[Tax Counsel]

So what am I missing here.

The problem is this: as her agent under the durable power of attorney (DPOA) you have a fiduciary obligation to act in your mother's best interests. The brokerage account at the bank has you named as a beneficiary of those accounts. This sets up a potential conflict of interest where you might use the DPOA to enhance what you get as beneficiary at the expense of what your mother would get. In that kind of situation generally the way to handle it is have the DPOA note the potential conflict and expressly state what you are authorized to do with that account so it is clear that she understands the issue and is ok with giving you whatever powers are granted you in the DPOA regarding the brokerage account. As you note, if she has dementia that has progressed to the point that she is no longer competent to sign off on changes to the DPOA that presents a problem that the new financial institution is obviously not comfortable with. Most financial institutions are quite conservative and will not like taking on accounts that might invite later litigation.

So how do I defeat this interpretation by the brokerage which presently is barring me from transfer.

Your problem is that the institution has the right to refuse to accept the account transfer and there isn't anything in the law that you can use to force the brokerage to accept it. You need to meet whatever the brokerage needs to feel comfortable that it won't get stuck in the middel of a battle over claims of abusing your power under the DPOA and thus violating your fiduciary responsibilities.

I suggest that you see an elder law/estate planning attorney for help. Your mother might still be competent enough to approve changes to the DPOA that will relieve the concerns of the financial institution. The level of competence required in the law for her to do that is not particularly high. If that's a possibility then the lawyer should know how to include what is needed to show she has the needed capacity to do it and draft the necessary changes to the DPOA. If she is legally incompetant, you may find it a battle to find any institution that will be comfortable taking the account with that potential conflict of interest hovering over it. The lawyer can review everything and may have suggestions for a work around that will suffice for the institutions given the particular details of your mother's condition and the terms of the DPOA.

 

[Tax Counsel]

By the way, my mother was 94 when she passed on to glory.

Then I envy you all those years with your mother. You were truly blessed with that and it's great to hear how much you cherish that. My mother died at the same age I am now. It pains me to think of all she missed by dying so young.

 

[army judge]

Then I envy you all those years with your mother. You were truly blessed with that and it's great to hear how much you cherish that. My mother died at the same age I am now. It pains me to think of all she missed by dying so young.

Thank you for the kind sentiments.

I no longer try to understand the many things about life that puzzles human beings.

My first wife died at age 37.

It was a struggle raising three young children, coping with her passing.

I learned to call those life lessons.

Each eventing life teaches us something.

Many of those lessons some consider cruel, I simply termed them as advanced courses.

My condolences upon your mother's passing.

I learned that we owe so much to others in our lives that we must keep trudging along to pay our debt and complete the duty we owe others.

I see death as the end of our duty to others, culminating in the our debt being paid in full.

Our mothers paid their debt.

One day you and I will have paid our debt, too.

 

[zddoodah]

So how do I defeat this interpretation by the brokerage which presently is barring me from transfer.

You likely can't. You certainly cannot force someone to cooperate with what is, on its face, self-dealing by a fiduciary. More generally, you cannot compel someone to do business with you on your terms. You'll either have to leave the money at its current location or seek an order from a court that sanctions what you want to do.