No, we do not recommend making that change based on the documentation described.

We do not believe the customer’s daughter has the necessary authority to have the accounts retitled or to transfer the funds into a trust account. The daughter’s power of attorney for healthcare allows her to make medical decisions for the customer but does not confer the authority to handle the customer’s property and financial matters.

Given that the customer lacks capacity and is therefore unable to execute a power of attorney for property, we believe the customer’s daughter must petition the court to be appointed as the guardian of the customer’s estate to obtain the necessary authority to exercise control over the customer’s accounts.

Also, we note that if the daughter is appointed the customer’s guardian with the necessary authority to control the customer’s accounts, we believe that the best practice would be to close the customer’s existing accounts and open a guardianship account, rather than retitling the existing accounts. Opening a separate guardianship account would avoid any number of complications that could arise by retitling existing accounts and would provide an opportunity for the bank to perform its Customer Identification Program duties for the guardian.

For resources related to our guidance, please see:

• Illinois Power of Attorney Act, 755 ILCS 45/4-3 (Power of Attorney for Healthcare. “The health care powers that may be delegated to an agent include, without limitation, all powers an individual may have to be informed about and to consent to or refuse or withdraw any type of health care for the individual and all powers a parent may have to control or consent to health care for a minor child.”)

• Illinois Power of Attorney Act, 755 ILCS 45/3-4(b) (Power of Attorney for Property. “Financial institution transactions. The agent is authorized to: open, close, continue and control all accounts and deposits in any type of financial institution (which term includes, without limitation, banks, trust companies, savings and building and loan associations, credit unions and brokerage firms); deposit in and withdraw from and write checks on any financial institution account or deposit;  and, in general, exercise all powers with respect to financial institution transactions which the principal could if present and under no disability. . . .”)

• Illinois Probate Act, 755 ILCS 5/11a-3 (“If the court adjudges a person to be a person with a disability, the court may appoint (1) a guardian of his person, if it has been demonstrated by clear and convincing evidence that because of his disability he lacks sufficient understanding or capacity to make or communicate responsible decisions concerning the care of his person, or (2) a guardian of his estate, if it has been demonstrated by clear and convincing evidence that because of his disability he is unable to manage his estate or financial affairs, or (3) a guardian of his person and of his estate.”)

• CIP Rules, 31 CFR 1020.220(a)(2) (Describing Customer Identification Program procedures, which require, at a minimum, that you collect a name, date of birth, address, and taxpayer identification number from every customer.)
   
• CIP Rules, 31 CFR 1020.220(a)(2)(ii)(C) (“The CIP must address situations where, based on the bank’s risk assessment of a new account opened by a customer that is not an individual, the bank will obtain information about individuals with authority or control over such account, including signatories, in order to verify the customer’s identity. This verification method applies only when the bank cannot verify the customer’s true identity using the verification methods described in paragraphs (a)(2)(ii)(A) and (B) of this section.”)