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#133760 - 11/24/03 05:17 PM Attorney in Fact Powers
Anonymous
Unregistered

In reading over IC30-5-5-5, especially (1) and (2), I am a bit confused as to whether an attorney in fact can use their powers to open (or amend) a joint account between themselves and the principal, with rights of survivorship. (1) seems to allow general authority to modify, however (2) states the account must be opened "in the name of the principal alone or in a manner that clearly identifies the principal/attorney in fact relationship." Is there a consensus among the banks??

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#133761 - 11/24/03 06:17 PM Re: Attorney in Fact Powers
Dan Persfull Offline
10K Club
Dan Persfull
Joined: Aug 2002
Posts: 47,532
Bloomington, IN
I’m no attorney and I have not reviewed this section of the Code before, but I don’t think the Code is limiting the AIF powers but is stating the POA must specifically address the powers the AIF has.

This Code, from a quick read, appears to address what powers must be addressed in the POA. But again I’m no attorney.

I'm basing this on:

30-5-5-1

Incorporation of powers; references; similar or overlapping powers; modification
Sec. 1. (a) An attorney in fact has a power granted under this chapter if the power of attorney incorporates the power by:
(1) referring to the descriptive language in sections 2 through 19 of this chapter ; or
(2) citing to a specific section of sections 2 through 19 of this chapter.
(b) Reference in a power of attorney to the descriptive language in sections 2 through 19 of this chapter shall be construed as though the entire section is set out in full in the power of attorney.
(c) If powers are similar or overlap, the broadest power controls.
(d) A power of attorney may in writing delete from, add to, or modify in any manner a power incorporated by reference, including the power to make gifts under section 9 of this chapter.
As added by P.L.149-1991, SEC.2. Amended by P.L.165-2002, SEC.7.
_________________________
The opinions expressed are mine and they are not to be taken as legal advice.

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#133762 - 11/25/03 08:14 PM Re: Attorney in Fact Powers
RedD68 Offline
New Poster
RedD68
Joined: Nov 2003
Posts: 8
Indiana
I agree that POA papers would specify that an attorney-in-fact has "Banking" powers, but if the papers state this, then the attorney-in-fact has the powers described under the "Banking" powers section (30-5-5-5). Thus the question, can an attorney use their powers under this section to setup a joint account with equal ownership and rights?
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#133763 - 11/25/03 09:10 PM Re: Attorney in Fact Powers
Dan Persfull Offline
10K Club
Dan Persfull
Joined: Aug 2002
Posts: 47,532
Bloomington, IN
If the POA has given the AIF that power by following the provisions of the Code then I would say yes. But you are asking a question that IMO requires a qualified legal opinion and I'm not qualified to give you that opinion.
_________________________
The opinions expressed are mine and they are not to be taken as legal advice.

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