Using Powers of Attorney to Access Safe Deposit Boxes During the Life of the Principal

Many people prepare their own powers of attorney, assuming that the document allows the Agent or Attorney-in-Fact to do everything the principal (the person signing the power) can do. It’s essential to understand that a power of attorney is only effective during the principal’s lifetime. After the principal passes away, the document becomes invalid. This blog discusses how the principal can allow the agent to access a safe deposit box while they are alive.

Competency Requirements

When using a simple power of attorney, the principal must be alive and competent. If the principal becomes incapacitated, the simple power of attorney no longer works. In contrast, a Durable Power of Attorney remains effective even if the principal loses competency. The principal must not have revoked the power, it must not have expired, and a court must not have removed the agent.

Judicial Proceedings and Authority Suspension

If someone initiates a judicial proceeding to assess the principal’s capacity and the power of attorney is not durable, the agent’s authority is suspended. This suspension lasts until the court resolves the matter, either by dismissing the petition or authorizing the agent to act.

Accessing the Safe Deposit Box

Assuming you are the agent with a valid Durable Power of Attorney, you may wish to access the principal’s safe deposit box at the bank. However, does the power of attorney grant you unrestricted access? Usually, it does not. Most banks require specific language in the power of attorney that authorizes access to the box. Before going to the bank, check the document to ensure it includes a provision allowing access. If it doesn’t, the bank may deny entry.

Inventory and Bank Requirements

As the agent, you must create and maintain a detailed inventory of the box’s contents each time you open it. Banks may also require further verification of the power of attorney before allowing access. A Durable Power of Attorney is the preferred document because it assures the bank that the principal remains competent or that their wishes are honored.

Post-Death Access and Probate Laws

Once the principal passes away, the power of attorney, as previously mentioned, becomes ineffective, regardless of its durability. Accessing the safe deposit box then requires adherence to state probate laws. Eligible individuals include spouses, parents, adult descendants, or those named as personal representatives. Only specific documents, such as wills and life insurance policies, can be accessed before Letters of Administration are issued.

Understanding the nuances of using powers of attorney to access safe deposit boxes is vital for both agents and principals. A properly executed Durable Power of Attorney facilitates access to important assets while the principal is alive, ensuring that their intentions are respected. Always consult with a qualified legal professional to create an effective estate plan tailored to your unique needs and circumstances. If you have any questions or need assistance, please contact our office at (727) 898-7210.