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Tuesday, November 30, 2010

Can Power of Attorney add himself to a bank account?

The scope of the powers of an attorney under an Enduring Power of Attorney, Continuing Power of Attorney, Durable Power of Attorney, or Power of Attorney for Property continues to be a mystery for many. This is why I'm always glad to receive questions about it.

Recently I was asked whether a person acting under a Power of Attorney can add himself to a bank account, presumably a bank account of the person he represents. The answer is both "yes" and "no", depending on what you mean by "add himself".

The idea of a Power of Attorney is to give someone else access to your money on your behalf. It's not in any way intended to give someone else ownership of your money or allow them to use it for themselves. So if "adding himself" to an account means that he becomes able to deposit your money, pay your bills, direct your investments, etc  then yes, he can add himself. This is what he is supposed to do for you.

As I said, Power of Attorney does not convey any ownership. Therefore if "adding himself" means putting his name on the account as a joint owner, then no he cannot add himself. Putting his name on as a joint owner means he has taken ownership of the money, as either owner of a joint account has the legal right to all of the money in the account.

In fact, it's possible that the Power of Attorney was made specifically to avoid anyone putting the assets into joint names.

Using a Power of Attorney to gain ownership of some or all of someone's else's money is fraud or theft, depending on the circumstances. There is a special crime in Canada's Criminal Code called Theft by Person With Power of Attorney. The only reason more people don't blow the whistle on the activity of fraudulent use of Power of Attorney is that, as I said earlier, most people don't really understand the nuances of how it works.

1 comment:

  1. one of my siblings (sister) and i have a POA for our mother. in addition to her POA, she also has a joint account with my mother (this was set up while my dad was alive) and reason being was language barrier and my sister would take care paying bills, etc.

    what becomes of the money in this joint account when my mom passes? it is my understanding that my sister can keep it and do as she please.

    can you confirm?

    thank you.

    ReplyDelete

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