Why You Should Establish Durable Power of Attorney For Your IRAs

8 February 2011 4 Comments Print This Post Email This Post

Among the many things that are important to deal with regarding your retirement accounts, you must consider the impact of your own disability and how your IRAs will be dealt with.  A very good way to do this is to have a durable power of attorney (DPOA) document signed that gives someone you trust the authority to make investment decisions, take distributions, and create new IRAs from your current accounts.

Maybe you consider this to be overkill – a belt to go along with your suspenders, so to speak – but then again, it might prove to be a very important document.  In the event of your capacity, without such a DPOA, you would not be able to continue carrying out actions that you intended, such as a Roth conversion.

Take for example a situation where a terminally-ill father has decided that his gift to his children upon his passing will be the total of his IRA, converted to Roth and with the taxes paid from his other sources, so that the Roth account will be available tax-free to the children.  The remaining balance of those other sources (a taxable investment account) is to be distributed to his alma mater per his will.  He has discussed this with his children and his attorney, however, prior to enacting this maneuver he slips into a coma, which lasts until his passing.

Now his children will still have the benefit of the IRA, but they will be paying tax on each distribution from the account during their lifetime(s).  And since his will stipulates that the taxable investment account’s balance is to be distributed to his alma mater, those funds are not available to pay the tax on the IRA distributions.  This isn’t what the father had hoped would occur at all.

Having a DPOA in place would have allowed the power-holder to complete the process of converting the funds to Roth, and paying the tax from the investment account, even though the gentleman in question was incapacitated.

One other factor that you shouldn’t overlook when putting such a document into place is that you should work with the IRA provider or plan administrator to ensure that the DPOA will be honored by them, should the need ever arise.  Sometimes the IRA provider will have a specific form that they request you to use in order to name a DPOA for their accounts.  It’s critical to know in advance that your plans will be allowed to play out the way you’ve orchestrated them.

  • http://www.bfponline.com/ Jim Blankenship, CFP®, EA

    Don,

    Great question!

    I think that’s a question best answered by an attorney, as well as the custodian of the funds. I’d start with the custodian, and ask them if they recognize a POA written in Texas law as valid for an account under their purview. I would guess that they probably have a boilerplate form that you could use, but that’s just a guess.

    jb

  • Donald

    I live in Texas, and the IRA is with a company in California. Which state does a Power Of Attorney comform to.

    Thanks,
    Don

  • Jim Blankenship, CFP®, EA

    Dave,

    It sounds like the company plan has a component that provides for holding the plan assets if the employee is not actively working. Is he vested in the plan? Generally, if he’s been there for more than 5 years he would be…

    Really, the answer to the question would have to come from the plan administrator – ask them to explain why he cannot have access to the funds, a better explanation than what you’ve received so far. And ask them what needs to happen in order for him to regain access to the funds.

    Beyond that, I don’t know what else to suggest…

    jb

  • dave

    my brother in law has a 401k worth 42,000.00 he has gotten sick and hasnt worked in 5 months. he dicided to take a loan on his 401k but when he called them they said they have power of attorney and he cant get his money. what exactly does that mean?