How Do I Use Father’s Durable Power of Attorney to Access On-line Accounts?
I have a durable power of attorney for my father who now has dementia. Does that mean I can go on-line as him to, for instance, manage his account with Social Security, read medical notes, or manage his finances, or do I need to contact each institution with their forms and a copy of the durable power of attorney? (It is meaningless to have a person with dementia sign permission when you already have durable power of attorney, but that is what a lot of the institutions ask for.)
This is a very interesting question. Your durable power of attorney should give you the right to act in your father’s place on most legal and financial matters, though the process can be difficult. With respect to financial accounts at banks and investment firms, in most cases you will have to show up at their offices to present an original of the durable power of attorney, prove your identity, and fill out their forms. Some will permit you to sign on without showing up personally, but they’ll probably require that your signature on their forms be notarized or signature guaranteed. The latter generally requires you to go in person to a financial institution where you already have an account.
Social Security and medical records are a bit of an anomaly. Powers of attorney are authorized under state law and thus do not apply to Social Security, which is a federal program. Instead, the Social Security Administration requires people acting for others to apply to become representative payees. Medical records are covered by the Health Information Portability and Accountability Act, better known as “HIPAA.” This also places the release of medical information under federal law, but some durable powers of attorney and most health care proxies or health care durable powers of attorney include a release that satisfies the HIPAA requirements. So, your father’s durable power of attorney may or may not authorize your access to his medical information.
Things get even more murky when dealing with on-line access, whether for financial accounts or for social media. Your father’s relationship with these institutions is governed by contract, often those agreements for which we all check off boxes on-line without reading. These may restrict your ability to act for your father under a durable power of attorney. Whether or not it is legal for them to limit your access may depend on how the on-line agreements are written and on state law. Your father may, in fact, be happy that you are denied access to his on-line dating accounts. With respect to traditional financial accounts, you will most likely first have to jump through the hoops described above for getting off-line access under your durable power of attorney. After you have established your status under the durable power of attorney, the financial institution will also grant you on-line access.
All of this said, as a practical matter, if you know your his usernames and passwords it may be much easier to simply pretend on-line that you are your father. It may not be strictly legal, but it may well be the course of least resistance. As long as you act in your father’s best interest, no one is likely to complain. You may also do this temporarily so you can manage your father’s finances and pay his bills while you go through the process of getting legitimate access. Whether you take this informal approach permanently or temporarily, if you have siblings, make sure they’re on board and there’s complete transparency. Otherwise, people are known to get suspicious even when there’s nothing to hide.
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Here, you say it’s OK to pretend online that I am my demented parent, as long as I am agent under a durable power of attorney, as long as I tell my siblings about it and they agree it’s fine, and as long as I’m conducting transactions that would help her and not harm her. It sounds as if you’re saying that in this situation, it would be OK for the agent to conduct transactions on bank accounts and other financial accounts, without getting permission from the bank, and without getting permission from the demented parent.
But in your answer to “How Do Lawyers Handle Potential Conflicts of Interest in Family Situations?,” you say the elder law attorney must “make sure that the plan is in line with what your mother wants….The attorney needs to feel comfortable that your mother wants to compensate you and preserve assets for you and your brother.”
It sounds as if the agent of a durable power of attorney has a lot more freedom to act if he or she does not tell the elder law attorney! Sort of a ‘don’t ask–don’t tell’ policy. Is this accurate?
You point out the conflict between following strict rules and finding a practical solution. Where there’s no conflict among family members and all are acting in the best interest of the person with dementia, we often advise clients to find practical solutions, especially when the person with dementia has named an agent to step in on her behalf when necessary. This can save thousands of dollars in legal fees and considerable time. On the other hand, where family members may disagree on the best course of action, it’s important to follow the letter of the law and jump through all hurdles. Otherwise, the agent’s actions may be challenged and he may be seen in a bad light, making it more difficult to defend his actions.