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A local attorney has criticized our policy of freezing customer accounts when we find that the account owner has died (with exceptions for joint accounts). Should we, as this attorney urges, permit individuals with powers of attorney for deceased customers to withdraw account funds for funeral and other end-of-life expenses? – IBA Compliance Connection

IBA Compliance Connection

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A local attorney has criticized our policy of freezing customer accounts when we find that the account owner has died (with exceptions for joint accounts). Should we, as this attorney urges, permit individuals with powers of attorney for deceased customers to withdraw account funds for funeral and other end-of-life expenses?

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We do not recommend permitting individuals with expired power of attorney documents to withdraw a deceased customer’s account funds. Under the Illinois Power of Attorney Act, a power of attorney expires when the person granting the power (the “principal”) dies. 755 ILCS 45/2-5In re Guardianship of Mabry, 281 Ill.App.3d 76, 83 (4th Dist. 1996). (A power of attorney may also expire at an earlier date, if the power of attorney sets an earlier termination date or if the principal revokes the power of attorney.) If a power of attorney has expired, we do not believe that the Power of Attorney Act’s safe harbor, for actions taken in “good faith reliance on a copy of a document purporting to establish an agency,” would protect your institution. Also note that the Power of Attorney Act’s form “Agent’s Certification and Acceptance of Authority” requires the agent to swear that the principal is alive at the time of completing the form. 755 ILCS 45/2-8.