Friday, July 7, 2017

No, You Can't Sign as the Witness on a Power of Attorney Appointing Yourself as Agent!

I recently received a call on behalf of a former client who had apparently suffered some serious medical issues.  The gentleman who called informed me that, since I last communicated with the former client, he had signed a new Power of Attorney for Property ("POA") appointing the caller his agent.  He told me that they had not worked with an attorney in preparing this new POA but just "found one online." The agent sought to review/obtain a copy of the former client's file at my office, including his estate planning documents.  I asked the agent to send me a copy of the new POA so I could take a look at it.

When I reviewed the new POA document, I saw the typewritten provision where the former client named the caller his agent.  I then checked to ensure the document had been signed by the principal, witnessed and notarized properly.   There were two attesting witnesses who signed the document - the named agent himself and his spouse (the spouse was also named as successor agent).

I pointed this out to the agent and explained that the statute does not allow the named agent or their spouse to serve as the attesting witnesses.  See 755 ILCS 45/3-3.6.  I explained that in my opinion the document was therefore not valid, and that I could not release the former client's file documents to the purported POA agent.

He called again about a week later, to inform me that he had provided the POA document to the former client's bank and financial adviser/broker, and they had accepted it without question.  He became agitated when I informed him my view had not changed, and he asked me, "Do you think you know more than ABC Bank and XYZ Financial?!"  (both of which are large, well known financial institutions).  I explained to him that not only did I believe I was right, but I also believed it would be unethical for me to turn over the former client's file to him under the circumstances, and I declined to do so.

The statute is quite clear on this issue.  But I share this story to make one particular point - IT IS A VERY BAD IDEA TO SIGN AS WITNESS ON A POA APPOINTING YOU AGENT.  For the person agreeing to serve as agent, by doing so you are taking on fiduciary duty obligations and exposing yourself to potential legal liability for violating that duty.  If you yourself sign as witness, it creates an inherent appearance of impropriety, that could be used against you later if there is ever an allegation you violated your duty, even if you always tried to do the right thing.

And a related point - WHETHER OR NOT A BANK CHALLENGES THE POA IS NOT PROOF OF ITS VALIDITY.  You have to understand, when you present a POA to a bank as basis for you to access funds as agent on behalf of the principal, YOU are the one with the primary legal obligation to actually have the legal authority you claim.  It is up to YOU to have the valid POA; it is not primarily up to the bank to catch an invalid POA.  To put it bluntly, you are potentially committing fraud by doing this, even if you have the best of intentions.

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