Power of Attorney

Using a Power of Attorney to Set Up & Fund a

Sub-Account for Someone Else

An Agent, acting under a power of attorney, can sign a Joinder Agreement and fund a sub-account if the power of attorney has the proper authority. Generally, the Agent is establishing a first-party sub-account for the person who signed the power of attorney (the “Principal”), but they can also be authorized to set up first-party sub-accounts for other people and even set up a third-party sub-account during the estate planning process.

In order for CCT to accept a power of attorney, the following criteria must be met:

1.    Is the POA valid under state law where it was signed? (ie: some states require notarization)​

2.    If multiple agents, do they have separate authority or will they both sign?​

3.    Is the POA currently in effect? If the authority goes into effect after a certain event (like the Beneficiary becoming incapacitated), then has this event been documented?​

4.    Does the POA grant the authority to establish a pooled special needs trust sub-account or, at least, an irrevocable trust?​

a.    If the authority is limited to establishing revocable trusts, then the Agent cannot sign the Joinder Agreement.

5.    Does the POA grant the authority to transfer assets into an irrevocable trust set up by the POA agent?​

a.    If the authority is limited to funding revocable trusts, then the Agent may not be able to fund the sub-account.

6.    Does the POA allow or place any limitations on the authority to establish beneficiaries?​

7.    Has the POA agent signed an Agent Certification  affidavit?​

Next steps: If you plan to have an Agent sign a Joinder Agreement on behalf of the Principal, please email it to the CCT New Client Services team with the CCT Agent Certification  for review prior to signing the Joinder Agreement at contact@trustCCT.org.

Suggested Authorities to Incorporate When Drafting Powers of Attorney

If authorities are granted in a durable general power of attorney, then Agents can fund third-party pooled special needs trusts for the principal’s loved ones in keeping with the POA gifting limitations. In addition, the Agents can respond to unforeseen circumstances by creating and funding first-party pooled special needs trusts as permitted by 42 U.S.C. 1396p(d)(4)(c).

1.    Authority to create and fund a first-party pooled special needs trust for the Principal

My Agent is authorized to (1) execute a 42 U.S.C. 1396p(d)(4)(c) pooled trust sub-account joinder agreement with Commonwealth Community Trustor another pooled special needs trust on my behalf, (2) assign, transfer, deliver, and convey any and all of my assets, including any rights to receive income or assets from any source, to the Trustee of the pooled special needs trust sub-account for my sole benefit, (3) designate the remainder beneficiaries for the sub-account, and (4) make requests for disbursements and receive and use the disbursements on my behalf.

2.    Authority to create and fund a first-party pooled special needs trust for the Principal’s child or grandchild

My Agent is authorized to (1) execute a 42 U.S.C. 1396p(d)(4)(c) pooled trust sub-account joinder agreement with Commonwealth Community Trust or another pooled special needs trust on behalf of my child or grandchild [or insert names], (2) assign, transfer, deliver, and convey any and all of my assets, including any rights to receive income or assets from any source, in keeping with my Agent’s authority to make gifts, to the Trustee of the pooled special needs trust sub-account for my child or grandchild’s sole benefit, (3) designate the remainder beneficiaries for the sub-account, and (4) make requests for disbursements.

3.    Authority to petition a court to create a first-party pooled special needs trust for the Principal’s loved ones (such as a spouse or parent)

Only the beneficiary, the beneficiary’s Agent acting pursuant to a power of attorney with proper authority, a court of law, as well as the beneficiary’s parent, grandparent, or legal guardian, have the authority to sign a joinder creating a first-party pooled special needs trust sub-account. POMS SI 01120.203(C)(2)

However, the principal can grant the principal’s agent the authority to use the principal’s funds to petition a court to create a sub-account for a loved one who does not fit into the relationship specified by law, like for the principal’s spouse or parent.

My Agent is authorized to use my funds to petition a court to create and fund a 42 U.S.C. 1396p(d)(4)(c) pooled trust sub-account with Commonwealth Community Trust or another pooled special needs trust on behalf of [insert names or class description].

4.    Authority to create and fund a third-party pooled special needs trust for the Principal’s loved ones

My Agent is authorized to (1) execute a pooled third-party trust sub-account joinder agreement with Commonwealth Community Trust or another pooled special needs trust for [insert names or class description], (2) assign, transfer, deliver, and convey any and all of my assets, including any rights to receive income or assets from any source, in keeping with my Agent’s authority to make gifts, to the Trustee of the pooled special needs trust sub-account for [insert names or class description]’s sole benefit, (3) designate the remainder beneficiaries for the sub-account, and (4) make requests for disbursements and receive and use the disbursements on the Beneficiary's behalf.