Join us in Madison for WBA’s annual Trust Conference
On May 25, 2022, WBA will be hosting its annual Trust Conference for the benefit of those involved with trust and estate planning. The one-day event held at the WBA office will assist trust professionals in staying up to date on upcoming changes in regulations, the economy, and overall trust department functions.
The conference will also feature a general session on elder abuse and undue influence by Jonathan Ingrisano and Nicholas Bezier of Godfrey & Kahn, S.C. Trust bankers and wealth managers of all levels will benefit from this session on spotting and responding to potential financial abuse of their elderly customers.
According to the World Health Organization, one in six individuals 60 years or older have experienced some form of abuse. Of this, less than 20% of financial abuse is reported by the individual or their proxies. “It is a growing problem that we can only expect to get worse as our population ages,” said Ingrisano.
This troubling trend is not only on the rise in Wisconsin, but throughout the country. As fraudsters become more sophisticated (even so that celebrities such as Stan Lee have endured financial abuse), it is important that bankers know the signs, understand their rights, and feel confident in approaching the situation.
As elder financial abuse cases rise, bankers have taken on the role of trusted advisors and observers. Trust bankers especially develop unique professional and personal relationships with their customers and have a greater ability to notice patterns, spot questionable distributions, and identify unexpected changes in their repeat customers patterns and behaviors.
“I want trust bankers to know they are empowered to do what they think is right, and their hands are not tied,” said Ingrisano. In this, the session will include advice from Godfrey & Kahn, S.C. representatives on reporting financial abuse or fraud, the tools and resources for trust bankers to consult as they work through cases, and important red flags to notice both in elderly customers and/or personal relatives experiencing such abuse.
In addition, trust bankers will also have the opportunity to learn more about how their paper trail observations on the front end can impact the actions taken by department heads or legal counsel on the back end. Through referrals or reports, bankers will learn of the avenues available to protect vulnerable members of their communities.
WBA’s Trust Conference is approved for 5.25 CTFA credit through the American Bankers Association (ABA). Register now to take advantage of this opportunity to stay ahead of upcoming regulatory changes, maintain your certification through ABA, as well as gain insight on how to better serve your community. Please contact Miranda Helt, WBA’s assistant director – education, at mhelt@wisbank.com with questions regarding the conference.
Q: Can a power of attorney act on an IRA or Trust Account?
A: Yes, but only if the power of attorney (POA) agreement permits it.
The extent of an agent’s authority to act under a POA agreement will always depend on the language within the agreement.
Wisconsin’s Uniform Power of Attorney for Finances and Property Act under Chapter 244 governs POA agreements in Wisconsin. Chapter 244 provides for general authority with respect to banks and other financial institutions. One general power granted under statute permits an agent certain actions on an account. Account is a defined term under Wis. Stat. 705.01(1). That definition is broad enough to include an IRA.
For a trust account, an additional consideration to make is that of granting authority. A trust is a separate legal entity from an individual, meaning it has its own interests and authorities distinct from that of an individual person. A power of attorney agreement creates authority between a principal (the person granting authority) and an agent (the person granted authority). A POA agreement giving authority to act on the finances of a natural person principal does not automatically mean the agent can act on accounts owned by a trust, even if the principal is a trustee of the trust. Because a trust account has its own authority and ownership interests, the principal must grant an agent authority to act through their powers as trustee. Authority to do so is derived from the trust agreement.
If a financial institution is unsure about its interpretation of the scope of an agent’s authority within a POA agreement, WBA recommends working with an attorney to receive a legal opinion.
By, Scott Birrenkott
Q: Can a Deposit Account with a Payable on Death Beneficiary have a Contingent Beneficiary?
A: No. Wisconsin Section 705 covers non-probate transfers at death. WBA does not read section 705 to permit contingent beneficiaries.
The WBA payable on death beneficiary designation form was created in accordance with the below interpretation of Wisconsin Section 705 and thus does not permit contingent beneficiaries. It has been WBA’s longstanding opinion that the POD statute does not permit identification of contingent beneficiaries to accounts governed by Subchapter 1 of the Chapter 705. Accounts covered by this statute include most standard checking, savings and certificate of deposit accounts established by a standard deposit account agreement.
The POD statute specifies who is entitled to payment on a POD account on the death of the last surviving accountholder. Under 705.06(1)(c), the funds are paid to the beneficiaries who survive the death of the last surviving accountholder. If none of the beneficiaries survive, the funds are paid to the estate of the last surviving accountholder. This is the way the WBA form is drafted.
The statute provides a second option under 705.04(2)(d), under which funds otherwise payable to a beneficiary who predeceases the death of the last surviving accountholder, would pass to the beneficiary’s issue who would take under 854.06(3).
When the option to pay the beneficiary’s issue was added to the POD statute, it was WBA’s understanding that the decision was made not to draft for this option. We believe that not all persons would want the issue (without identification of specific children) to receive payment. Further, the bank would not have any easy way to identify all of the issue who would be entitled to the payment. The identity of a person’s issue can change throughout the term of the account.
However, the statute does not permit any other payment of fund in a POD account. The statue does not authorize payment to named contingent beneficiaries.
The WBA POD beneficiary form was drafted to follow the above. Thus, if a bank wishes to contract in a way to appoint contingent beneficiaries for a customer’s deposit account we recommend working with the bank’s own counsel to either modify WBA’s form or create a separate designation. If your bank does not use WBA forms we recommend consulting with your forms drafters to determine what their interpretation of Section 705 is with respect to contingent beneficiaries.
Note: The above information is not intended to provide legal advice; rather, it is intended to provide general information about banking issues. Consult your institution’s attorney for special legal advice or assistance.
By, Scott Birrenkott
