Parkersburg, WV asked in Banking for West Virginia

Q: Can I as the Durable power.of Attorney for my father ,access his money in his bank accounts I as see best?

I am also the sole.benificery in his will

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1 Lawyer Answer
Ana Maria Del Valle-Aguilera
Ana Maria Del Valle-Aguilera
  • Business Law Lawyer
  • Miami, FL

A: A Durable Power of Attorney (DPOA) only means that you may continue to exercise the powers granted under the DPOA even when the grantor (your father) may be sick or legally incompetent. In other words, unless your father terminates it, it would be effective until his death.What powers you are actually granted by the DPOA is what a bank will go with. If you are not specifically granted power to access his bank accounts, you will not be given access by the bank.There is a specific DPOA language by statute in WV, which I presume might be similar to the one used by your father, unless his DPOA was executed before this form was approved by the legislature. It's West Virginia's Code §39B-3-101 (Statutory form power of attorney), and you can find it easily with a Google search.

In addition, the statute provides your legal duties as an agent, which continue until you resign or the power of attorney is terminated or revoked by your father.By statute you must:

(1) Do what you know the principal reasonably expects you to do with the principal’s property or, if you do not know the principal’s expectations, act in the principal’s best interest; act in good faith;

(2) Do nothing beyond the authority granted in this power of attorney;

(3) Act loyally for the principal’s benefit;

(4) Avoid conflicts that would impair your ability to act in the principal’s best interest;

(5) Act with care, competence, and diligence;

(6) Keep a record of all receipts, disbursements, and transactions made on behalf of the principal;

(7) Cooperate with any person that has authority to make health care decisions for the principal to do what you know the principal reasonably expects or, if you do not know the principal’s expectations, to act in the principal’s best interest; and attempt to preserve the principal’s estate plan if you know the plan and preserving the plan is consistent with the principal’s best interest.

In summary, if you have the authority by the DPOA and act within the legal duties imposed by the statute, you may access the money in his bank accounts for his benefit as you deem appropriate.

Even if you are currently the sole beneficiary in a will, they can be contested in court by others if they have inheritance rights if there is no will. If this is a possibility, it is important to keep good records/accounting of what you do, and why, with your father's property, including his bank accounts.

If the DPOA form is not the one currently suggested by the WV legislature, have a local attorney take a quick look at the document to ensure that the necessary language is there and that the formalities of execution of the document were met.

My response provides only general information and is not intended to provide you with specific legal advice, nor create an attorney-client relationship. You should not use or rely on this information without first consulting with your own lawyer and discussing your specific facts and available options in detail.

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