Access to safe deposit box by an agent under a power of attorney

Q&A:  Here’s a question that a Wisconsin credit union recently asked The League’s Legal Affairs team, along with our answer. Do you have a compliance question? Contact The League’s Compliance Hotline at (800) 242-0833 or email.

Q. I have a member recently granted POA for another member.  We are questioning whether the POA has the ability to access the SDB.  Her POA papers list “Tangible personal property” as accessible.  There is no specific mention of the SDB.  Would you be able to assist in this situation?

A. We offer ii Release No. 0168 to describe how to read and interpret financial powers of attorney. Anybody who deals with POAs should study it for a more thorough understanding. Some issues in the ii Release apply to all POAs; some in only certain scenarios. What we say in this Q&A supplements the guidance in the ii Release. 

• The ii Release includes two checklists to help you keep track of the issues when reviewing a POA.
• It also includes a sample view of The League’s Agent Certification form (#81018), which can offer some legal protection when dealing with the agent under a financial POA.

Please read every word of the POA document. You may find a clause that seems to permit an action by the agent, but elsewhere another clause may limit or prohibit that action.

An extreme but not unusual example is that the POA may authorize an action in one spot but may be negated by a clause limiting when the POA is in effect (such as a delayed effective date, an expiration date, or a need to activate by a doctor’s certification of incapacity of the principal).

Here is a big concept that you need to keep in mind when reading a POA:

1. Some POA documents give very broad authority. They may have language that grants the agent the powers to do nearly anything the principal could do, except for things like writing a will, making gifts, etc.
2. But many other POA documents list only specific powers that the agent will have, perhaps in categories of information. Normally, just listing specific powers means that the agent can only do the powers listed, and nothing else.

There are two very important variations that can change the result. You’ll need to look at these very carefully.

Many POAs include what looks at first like a broad general power statement as in #1 above, as well as a list of specific powers, as in #2. This requires a closer look.

There is often a clause before (or after) the list, introducing it, saying something to the effect of “the agent can do anything I could do myself including, but not limited to, the following [list].” This is very broad. It is expansive beyond the list of specific powers. It gives authority for the agent to do things that aren’t specifically listed. This kind of POA is usually easier to analyze to be sure there is authority for a particular activity.

On the other hand, there is often a clause, before (or after) the list, that says something like “the agent can do anything I could do myself relating to the following [list].” This is not as broad as it may sound at first. It is not expansive beyond the list of specific powers. It does not give authority for the agent to do things that aren’t listed at all. That kind of POA can be somewhat more difficult from the credit union’s point of view, since it may not be so easy to be sure there is authority for the agent’s proposed actions.

There is another helpful tool when dealing with the specific powers. 

When Wisconsin law applies, it tells us how to interpret a clause that grants general authority with respect to a particular topic.

The credit union presenting our question today describes a clause giving authority regarding tangible personal property. The chapter of the Wis. Stats. regulating powers of attorneys, at §244.45, tells us how to interpret language in a power of attorney granting general authority with respect to tangible personal property. It would authorize the agent to exercise a handful of powers: buy, sell, lease, store, insure, move, exchange, or grant a security interest in tangible personal property, etc. But none of the activities for tangible personal property relates to leasing or entry to a safe deposit box.

On the other hand, the credit union posing today’s question should review the power of attorney document to see whether it includes a general authority regarding banks and other financial institutions. If so, §244.48 Banks and other financial institutions provides that such a clause is deemed to authorize 11 different banking activities in the statute — unless the power of attorney provides otherwise.  See subsections (3) and (6) below for the powers that would be granted in regard to a safe deposit box.

244.48 Banks and other financial institutions. Unless the power of attorney otherwise provides, language in a power of attorney granting general authority with respect to banks and other financial institutions authorizes the agent to do all of the following:

1. Continue, modify, and terminate an account or other banking arrangement made by or on behalf of the principal.
2. Establish, modify, and terminate an account or other banking arrangement with a bank, trust company, savings and loan association, credit union, thrift company, brokerage firm, or other financial institution selected by the agent.
3. Contract for services available from a financial institution, including renting a safe deposit box or space in a vault.
4. Withdraw, by check, order, electronic funds transfer, or otherwise, money or property of the principal deposited with or left in the custody of a financial institution.
5. Receive statements of account, vouchers, notices, and similar documents from a financial institution and act with respect to them.
6. Enter a safe deposit box or vault and withdraw or add to the contents.
7. Borrow money and pledge as security personal property of the principal necessary to borrow money or pay, renew, or extend the time of payment of a debt of the principal or a debt guaranteed by the principal.
8. Make, assign, draw, endorse, discount, guarantee, and negotiate promissory notes, checks, drafts, and other negotiable or nonnegotiable paper of the principal or payable to the principal or the principal’s order; transfer money, receive the cash or other proceeds of those transactions; and accept a draft drawn by a person upon the principal and pay it when due.
9. Receive for the principal and act upon a sight draft, warehouse receipt, or other document of title whether tangible or electronic, or other negotiable or nonnegotiable instrument.
10. Apply for, receive, and use letters of credit, credit and debit cards, electronic transaction authorizations, and traveler’s checks from a financial institution and give an indemnity or other agreement in connection with letters of credit.
11. Consent to an extension of the time of payment with respect to commercial paper or a financial transaction with a financial institution.

So, our credit union asking the question is not allowed to give the agent access to the safe deposit box based on a general authority for tangible personal property. But it may allow SDB access if the POA document authorizes general activities for banks and other financial institutions.

Wisconsin’s POA statute has detailed descriptions of what the following 15 specific powers (Wis. Stats. §244.44 to §244.56.) They are:

• 244.44   Real property;
• 244.445 Digital property;
• 244.45   Tangible personal property;
• 244.46   Stocks and bonds;
• 244.47   Commodities and options;
• 244.48   Banks and other financial institutions;
• 244.49   Operation of entity or business;
• 244.50   Insurance and annuities;
• 244.51   Estates, trusts, and other beneficial interests;
• 244.52   Claims and litigation;
• 244.53   Personal and family maintenance;
• 244.54   Benefits from governmental programs or civil or military service;
• 244.55   Retirement plans;
• 244.56   Taxes; and
• 244.57   Gifts

Keep in mind that this expansion of language in a power of attorney granting general authority only holds true to the extent the power of attorney document does not provide otherwise.

There is a lot of information here, and interpreting POAs can be difficult to deal with. Please feel free to call The League with your POA questions.