Power of Attorney: lessons learned

I am a year-and-a-bit into my "on-the-fly" education of acting as Power of Attorney (POA will be used as the abbreviation for the rest of this article) for a relative, and let me tell you, it's been a journey and a half. Let me share some of the things I've encountered, in the hope that you, someone who might be writing one up for the future or has already done so, might see this and wonder if there are things you need to consider that you hadn't thought about before.

Who might this be relevant to?

ALL of the things I have encountered are because of a specific situation:

1. The POA was written and based on New York State law for a U.S. citizen and resident of New York State. She signed her copies in New York with her lawyer.
2. All of the agents named on the POA are Canadian citizens and residents of the province of Ontario. We signed the copies of the POA in Ontario with a lawyer in Ontario (who is also a notary).

Lesson #1: If you can, name a co-agent that is a resident of the State/Province and Country you are in, along with the relatives who are not local, if you have no other option. There are firms that provide these services if there are no people you can trust. "Why" will become apparent further along here.

Short version of the backstory

This relative's father was Canadian, moved to the USA as a young man, lived there the rest of his life, got his US citizenship, got married, had a child, etc. The relative herself is a US Citizen, has always lived in New York state. No siblings, no kids, never married, and no living relatives in the USA, just her cousins in Canada are all she has left, my mom & I included.

When she drafted her Power of Attorney forms a few years ago when she was healthy, it was a natural decision for her to name my mother and me as her agents, since we were the two closest relatives she had (literally and figuratively).

Fast forward to last April when she had a stroke and was unable to care for herself, and quickly lost the cognitive ability to manage her finances. My mom was actually the sole named agent on the POA, with me being the successor agent. The successor agent in this case became "the" agent if the named agent was deceased, unable or unwilling to accept the role (paraphrasing a bit there). This was far too much for my mom to take on, so she signed a letter, we had it notarized, where she essentially handed over the reins to me.

I was fortunate here: my mom and I have a good enough relationship that this transition was within a couple of weeks of us needing to start managing the relative's finances so I have effectively been acting as POA from day 1 even though I wasn't actually able to sign anything on her behalf until a few weeks had passed.

Lesson #2: Here is another "I'm not a lawyer" thing, but if it is possible to name co-agents that can act independently without co-signing everything, ask your lawyer about that to make an educated decision. Some things would have been far simpler if my mom and I were co-agents, especially if we could act independently,y not co-sign everything. With the primary/successor setup, I could do nothing until my mom relinquished her obligations under the POA, even though I'm the accountant with the financial acumen and background suitable for this task.

Picture this: everywhere I needed to submit the POA paperwork, which already was complicated by the fact that my mom wasn't a US citizen or resident, now needed to be accompanied by another letter – notarized – that my mom signed indicating (essentially) that she was unable to perform the duties of POA. If I had a dime for every time I had to explain why I was giving them multiple documents to prove who I am in this scenario, I might be able to buy a nice dinner by now.

Not all banks accepted the POA

My relative had accounts all over the place, mostly credit cards. Chase, Bank of America, Citibank, Tompkins Bank, US Bank, etc., I had to contact a lot of banks to be able to pay off and close these cards.

Bank of America specifically was a massive pain in the ass. I initially called them with her sitting beside me to verify that she allowed me to speak on her behalf, to close the account. They screwed up and didn't close the account. Next time I called without her, they said I couldn't talk to them without her approval, even if it was on record already. I provided the POA just like I did to all the other banks, but it wasn't accepted. She still technically has a credit card there, so at least I was able to log in to inactivate it from being used, since I still can't cancel it. I provided:

• A faxed copy of the original (most banks accepted this, and I quickly closed most of the rest of the accounts).
• Proof of my citizenship and Social Insurance Number (which they needed, apparently).
• A re-notarized "certified copy" which I paid a notary in Ontario to prepare. I watched him take a copy of the original document, of which I had 1 copy of, stamp every single god-damned page, and sign and date every page. I mailed this in. They rejected it.

I gave up. The best I could tell was that this was because I was a non-citizen/resident of the USA, and that's as far as I could get from multiple calls to their call centres.

If at least one agent was a resident/citizen, I suspect this would not have been an issue.

The investment firm refused to accept the POA

This was a VERY frustrating lesson, but thankfully one that is behind me now. Her investments, minimal as they were, were with Edward Jones USA. During the "draw-down" period in the initial few months, when I needed money transferred to get to the point of eligibility for Medicaid, her advisor got it transferred. Then he was terminated. The new advisor stated he was unable to take direction from me because they are not licensed in Ontario, Canada, where I live. "FINRA" rules they said. Bullshit I said, but apparently it is true.

Here is where Lesson #1 above would have solved everything. No matter what I tried with this advisor, including hiring and paying for a lawyer to try to sort this out with Edward Jones USA corporate lawyers, they were not going to accept the POA because the named agent is in a jurisdiction they are not licensed to operate in.

The biggest issue with this situation is that I had no control over her funds, the majority of her assets were with Edward Jones, and when Medicaid was approved, I owed more money in the "true up" to the long-term care facility that I had no funds to pay with. Additionally, under Medicaid, a person is limited to how much "wealth" they can have, and I would have to prove annually that she is within those limits. Without being able to direct the investments, I had no control over whether something ended up with significant gains and would put her back out of being eligible for Medicaid again. Talk about being in stress city!

Initially, they offered to allow me to transfer the funds to Edward Jones Canada if I opened an account for her here. Problem #1 Her POA prohibits me from opening accounts outside of NY State. Problem #2 In order to move her funds to another account, even in the same broad firm, the funds would need to be liquidated first, and since I was unable to authorize the direction to do that, transferring the funds was therefore impossible. Little known fact: you cannot hold US mutual funds in a Canadian institution's account, even if it's a USD account,t just like you cannot hold Canadian mutual funds in a US institution. I didn't know that either.

Ultimately, they told me that this would be resolved when she dies. Just fucking lovely isn't it?

THANKFULLY, I talked the advisor into meeting my relative with me. She has lucid moments, and while I'm not religious in the least, PRAISE THE LORD that the day we met together, she was having a great day, and she confirmed for him that she agreed with my decision to close her account and move her money to her primary bank instead. OMFG I never had as big a victory dance as I did earlier this month when that money was deposited into her bank account. What a shit show.

Not all institutions recognize non-US notaries

I ran into this issue twice (so far).

In the first instance, I changed her Medicare Advantage provider to one that had a great plan specific for people in long-term care facilities. I needed to submit the POA to be able to transact on her behalf and get her registered for this, etc., but their legal team said there was no expiry date on the notary's seal. Little did I know that in the US, or at least in NY State, notaries have terms and their seals/stamps have expiry dates. In Canada, or at least in Ontario, lawyers specifically are automatically also notaries public, and it is for life, so no expiration date applies. The POA notarization of my mom's & my signatures originally was done in Ontario with a lawyer here, with no expiry date. I needed to send in proof of her legal licence and another thing proving the fact that there is no expiry date for notaries in Ontario if they are a lawyer. They accepted that, and we moved on.

In the second instance, it is her primary bank asking for this in order for me to open new bank accounts in her name. The money I reference above from her investments is sitting in a checking account that earns 0.01% interest. Not a typo. The POA is already on her account, all is good with that; however, in order to set up new accounts in her name, they needed to prove the validity of the notary. I know she doesn't have much,h but I would like it to at least earn a bit more money.

I communicated with the bank that I want to purchase some CDs (Certificates of Deposit), which are kind of like GICs (Guaranteed Investment Certificates) here in Canada. They questioned the validity of the notary. While the POA on her existing accounts is valid and accepted, I was confused at why I needed something new now but at this point in the journey, little surprises me because nothing has been easy.

Initially, I responded with the same 2 supporting documents that I sent to the Medicare Advantage provider, but they were not accepted. They requested an "Apostille". WTF is that, you ask? That was my question two weeks ago!

An Apostille is an authentication for a document to be used outside the jurisdiction in which it was notarized. This would be for authorizing any public document, like a birth certificate or diploma or powers of attorney. I had to ask my lawyer who was the original notary because, honestly, I didn't know what this was or how to obtain it.

Lesson #3: The process of getting the Apostille for the POA was actually pretty painless. For my specific scenario, it was a Service Ontario function. I went here https://www.ontario.ca/page/authenticate-document-use-outside-canada to start the process, then I went to Toronto to the 777 Bay Street location where "ODS" (Ontario Document Services) is located to get the Apostille. It cost me $16. It also cost me $23 to park for 2 hours, LOL, but that's Toronto for you. I went and waited, and end to end took me an hour to get this done. Well worth the drive to just get it done in my opinion, as the alternative was to mail the original POA to them, and the chances of it getting lost were too high for me to risk.

In my specific instance, a document notarized in Ontario for use in the USA was what this Apostille is for: to validate the notary and authorize it for use outside of Canada. What was fascinating to me is that it is now permanently attached to the original POA I provided with this clip in the upper left-hand corner, such that I cannot take it off or it invalidates the Apostille.

Learning is fun!

I say that with more than a bit of sarcasm in my voice. I think of how little I understood what was involved in being a POA, let alone this US-Canada stuff,f and I am amazed at what I have learned this past year.

Lesson #4: If possible, when you draft your own POA, have multiple copies of it with original signatures and notaries. Scanning it in will work for numerous scenarios, but some places will need "an original". Bank of America requested 'the original' and I said no, because I only have one with the original ink signatures and seals. I still only have one, and it now has the Apostille attached to it, so it is forevermore joined into a single document that I would be unable to take apart if I needed to. Ideally, if I had a second (or more) "original" versions, that would be useful in case it needed to be sent somewhere.

Lesson #5: If possible in this situation, I would have (could have, should have) gone to NY State to sign the POAs there and be notarized in the US, but overall, that was the least of the issues. The citizenship was far more of a hassle than the authentication of the notary in the end. Fortunately, the letter my mom signed relinquishing her role as agent we did have notarized in the US, so I did not need to get an Apostille for that document.

Summary

This has been a long, trying year of struggles, mostly with things relating to the POA acceptance. Admittedly, this scenario is unique; most people in the US don't have a Canadian POA and have other options. For those in my scenario, if you can revisit things now before you need the POA, great. If you are in my scenario and planning to draft your own POA, possibly this may give you some things to consider. The majority of these issues were because I don't live in the US and am not a US citizen, full stop.

Original Post https://jenkuntz.ca/2025/06/power-of-attorney-lessons-learned/