View Full Version : Questions about power of attorney and Innocent Spouse


Manzanita
11-25-2004, 03:03 PM
I sent my husband a power of attorney form so that I can open a bank account for him, but after reading it he is very worried about signing it because he does not know the laws well, and I do not either, so he is worried about having a bank account and IRS taking money from him, because of my old debt to IRS. Is there anyway for the IRS to seize his assets if it is ONLY in his name - I was told no, if you get a form filled out called INNOCENT SPOUSE, http://www.irs.gov/pub/irs-pdf/f8857.pdf

Because I have a power of attorney he thinks that makes it different? that the IRS can just take it, but I was trying to explain to him that when you have a SEPERATE ACCOUNT from me, the IRS cannot take it because then it has no attachment to me.

When he gets home how can we stop the power of attorney?

He was reading the power of attorney and it mentioned Article ..., but we do know what that says?

now, is it innocent spouse or injured spouse? my debt is from 1999-2000, if we file joint and my husband wants his part of the refund when does he file this form, now or when he starts to make money? we filed joint last year.


any answers would be great - thanks ;)

this is the one:
DURABLE GENERAL POWER OF ATTORNEY
NEW YORK STATUTORY SHORT FORM
THE POWERS YOU GRANT BELOW CONTINUE TO BE EFFECTIVE
SHOULD YOU BECOME DISABLED OR INCOMPETENT
(CAUTION: THIS IS AN IMPORTANT DOCUMENT. IT GIVES THE PERSON WHOM YOU DESIGNATE (YOUR "AGENT") BROAD POWERS TO HANDLE YOUR PROPERTY DURING YOUR LIFETIME, WHICH MAY INCLUDE POWERS TO MORTGAGE, SELL, OR OTHERWISE DISPOSE OF ANY REAL OR PERSONAL PROPERTY WITHOUT ADVANCE NOTICE TO YOU OR APPROVAL BY YOU. THESE POWERS WILL CONTINUE TO EXIST EVEN AFTER YOU BECOME DISABLED OR INCOMPETENT. THESE POWERS ARE EXPLAINED MORE FULLY IN NEW YORK GENERAL OBLIGATIONS LAW, ARTICLE 5, TITLE 15, SECTIONS 5-1502A THROUGH 5-1503, WHICH EXPRESSLY PERMIT THE USE OF ANY OTHER OR DIFFERENT FORM OF POWER OF ATTORNEY.

THIS DOCUMENT DOES NOT AUTHORIZE ANYONE TO MAKE MEDICAL OR OTHER HEALTH CARE DECISIONS. YOU MAY EXECUTE A HEALTH CARE PROXY TO DO THIS.

IF THERE IS ANYTHING ABOUT THIS FORM THAT YOU DO NOT UNDERSTAND, YOU SHOULD ASK A LAWYER TO EXPLAIN IT TO YOU.)

THIS is intended to constitute a DURABLE GENERAL POWER OF ATTORNEY pursuant to Article 5, Title 15 of the New York General Obligations Law:

I, __________________________________________________ _______________
(insert your name and address)
do hereby appoint:

__________________________________________________ _______________
(If 1 person is to be appointed agent, insert the name and address of your agent above)
__________________________________________________ _______________
__________________________________________________ _______________
__________________________________________________ _______________
__________________________________________________ _______________
(If 2 or more persons are to be appointed agents by you insert their names and addresses above)

my attorney(s)-in-fact TO ACT

(If more than one agent is designated, CHOOSE ONE of the following two choices by putting your initials in ONE of the blank spaces to the left of your choice)

( ) Each agent may SEPARATELY act.
( ) All agents must act TOGETHER.

(If neither blank space is initialed, the agents will be required to act TOGETHER)

IN MY NAME, PLACE AND STEAD in any way which I myself could do, if I were personally present, with respect to the following matters as each of them is defined in Title 15 of Article 5 of the New York General Obligations Law to the extent that I am permitted by law to act through an agent:

(DIRECTIONS: Initial in the blank space to the left of your choice any one or more of the following lettered subdivisions as to which you WANT to give your agent authority. If the blank space to the left of any particular lettered subdivision is NOT initialed, NO AUTHORITY WILL BE GRANTED for matters that are included in that subdivision. Alternatively, the letter corresponding to each power you wish to grant may be written or typed on the blank line in subdivision "(Q)", and you may then put your initials in the blank space to the left of subdivision "(Q)" in order to grant each of the powers so indicated)

( ) (A) real estate transactions;
( ) (B) chattel and goods transactions;
( ) (C) bond, share and commodity transactions;
( ) (D) banking transactions;
( ) (E) business operating transactions;
( ) (F) insurance transactions;
( ) (G) estate transactions;
( ) (H) claims and litigation;
( ) (I) personal relationships and affairs;
( ) (J) benefits from military service;
( ) (K) records, reports and statements;
( ) (L) retirement benefit transactions;
( ) (M) making gifts to my spouse, children and more remote descendants, and parents, not to exceed in the aggregate $10,000 to each of such persons in any year;
( ) (N) tax matters;
( ) (O) all other matters;
( ) (P) full and unqualified authority to my attorney(s)-in-fact to delegate any or all of the foregoing powers to any person or persons whom my attorney(s)-in-fact shall select;
( ) (Q) each of the above matters identified by the following letters:
__________________________________________________ _______________
(Special provisions and limitations may be included in the statutory short form durable power of attorney only if they conform to the requirements of section 5-1503 of the New York General Obligations Law.)
__________________________________________________ _______________
__________________________________________________ _______________
__________________________________________________ _______________
__________________________________________________ _______________

This durable Power of Attorney shall not be affected by my subsequent disability or incompetence.

If every agent named above is unable or unwilling to serve, I appoint

__________________________________________________ _______________
(insert name and address of successor)

to be my agent for all purposes hereunder.

TO INDUCE ANY THIRD PARTY TO ACT HEREUNDER, I HEREBY AGREE THAT ANY THIRD PARTY RECEIVING A DULY EXECUTED COPY OR FACSIMILE OF THIS INSTRU- MENT MAY ACT HEREUNDER, AND THAT REVOCATION OR TERMINATION HEREOF SHALL BE INEFFECTIVE AS TO SUCH THIRD PARTY UNLESS AND UNTIL ACTUAL NOTICE OR KNOWLEDGE OF SUCH REVOCATION OR TERMINATION SHALL HAVE BEEN RECEIVED BY SUCH THIRD PARTY, AND I FOR MYSELF AND FOR MY HEIRS, EXECUTORS, LEGAL REPRESENTATIVES AND ASSIGNS, HEREBY AGREE TO INDEMNIFY AND HOLD HARMLESS ANY SUCH THIRD PARTY FROM AND AGAINST ANY AND ALL CLAIMS THAT MAY ARISE AGAINST SUCH THIRD PARTY BY REASON OF SUCH THIRD PARTY HAVING RELIED ON THE PROVISIONS OF THIS INSTRUMENT.

THIS DURABLE GENERAL POWER OF ATTORNEY MAY BE REVOKED BY ME AT ANY TIME.

In Witness Whereof I have hereunto signed my name this ..... day of
_________________________, 20_____.

(YOU SIGN HERE) ==> ____________________________________
(Signature of Principal)

ACKNOWLEDGEMENT
STATE OF NEW YORK
COUNTY OF __________________

On this ____ day of __________________, 20_____ before me the undersigned, personally appeared ,__________________________________, personally known to be or proved to me on the basis of satisfactory evidence to be the individual whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his capacity, and that by his signature on the instrument, the individual, or the person who acted on behalf of the individual, executed the instrument and that such individual made such appearance before the undersigned in the City of New York, County of New York, State of New York.


__________________________________
Notary
__________________

sweetpea
11-26-2004, 01:49 AM
I will look into the innocent spouse part that you mentioned over the weekend, but wanted to let you know that there are also POA Revocation forms, here is an example of one:

POWER OF ATTORNEY REVOCATION

Reference is made to certain power of attorney granted by __________________________________ (Grantor) to __________________________________ (Attorney-in-Fact), and dated _________________, 20____.

This document acknowledges and constitutes notice that the Grantor hereby revokes, rescinds and terminates said power-of-attorney and all authority, rights and power thereto effective this date.


Signed under seal this ____ day of_______________________________, 20____.



____________________________________
[Signature of Grantor]

____________________________________
[Printed or Typed Name of Grantor]


Acknowledged:



________________________________


STATE OF ____________________
COUNTY OF ___________________

On__________________________before me,_____________________________ personally appeared, personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal.





Signature: ____________________________

Affiant: ____Known ____Unknown


ID Produced ____________________


(Seal)

SerenitysDancer
11-26-2004, 02:51 AM
As long as the account is only in his name, they would not seize that as an asset. When one has power of attorney you are signing your husbands name only, not yours when you open the bank account. He will be fine. Of course check out any advice you receive :-).

The IRS has a form you can fill out on his behalf called "injured spouse" if I remember correctly. That will protect whatever portion of a refund you would receive, his monetary amount would not be affected, he is protected. Hope this was helpful.

pipkin
11-26-2004, 03:35 AM
A general power of attorney is a very broad legal document. It basically turns you (the agent) into that person, for all legal purposes. A general power of attorney is not something to be entered into lightly. If person A gives person B a general power of attorney, person B can sell anything that person A owns (car, house, stock, etc) for ANY price (3.00 for a car, 6.00 for a house), to ANY person they choose (friend, family). The agent(person B) can walk into ANY bank or finance/loan company and borrow money in person A's name and person A is legally responsible to repay that debt. Person B(the agent) can apply for credit cards in person A's name. Person A is 100% legally responsible to pay for ALL debts that their AGENT (person B) incurs in Person A's name.

Repeat...Beware of signing over general power of attorney, (most lawyers would advise their clients to NOT do it).

Are you just needing a bank account? If all you are needing is a bank account, I think there could be a way of accomplishing that goal without having a "power of atty".

As for the IRS...(and I know about this from personal experience)
You said you owe the IRS from several years back. I assume this is a debt you incurred PRIOR to your marriage(which makes it a seperate debt). Every month that you don't pay, the IRS lumps on additional charges. Hence...the debt gets bigger and bigger and it will mushroom on you. So, an IRS debt should be a high priority on your bill paying list. There is a thing called "OFFER AND COMPROMISE" with the IRS. Basically it's this...Assume you owe $60,000.00. You submit an Offer and Compromise to the IRS offering to pay them $20,000.00 lump sum payment as 100% settlement on your $60,000.00 debt. (of course you need to be prepared to write them a check for $20,000.00 if they accept your offer) Rule of thumb--they'll usually settle for 1/3 of what you owe. We owed the IRS $90,000.00 and they agreed to settle for $30,000.00. If they don't accept your first offer, offer again, don't give up. Also, if you have been making monthly payments(trying to pay your debt) they look at that in a favorable way to you and will be more likely to accept your offer and compromise.

I'm not sure if this still applies, but I've been told that even if you file bankruptcy, you still owe your IRS and student loan debts.....if this is true, then bankruptcy is not a solution to your IRS debt....you see, they want their money, and they will get it eventually, and they charge you interest, failure to pay penalties, etc which can easily turn an original debt of $1500.00 into a debt of $15,000.00 after 6, 7, 8 years or so.

Manzanita
11-26-2004, 06:34 AM
thanks !!!! :)

I was telling him to check off, just the part about the bank account and the part about filing taxes, that is all I need, so that I can plan while he is still in there, to open an account for him PERIOD. I dont want to do anything else with it.

pipkin, I have looked into offer in compromise, I owe IRS like 14K....yet I never filed it, because the forms scared me, and I could not afford a law service to help me, they charge like 900-1,500 and I was not prepared to pay up a huge lump sum, I was not working for awhile and could not and did not make payments, I was in non payment status. Now I am working. but now OIC costs 175 to file....so what would I owe them of 14K about? and does it matter how old it is to file and OIC?
thanks for your help everyone.

Doc's Sis
11-26-2004, 07:07 AM
I had an attorney do the POA form so that I can handle my brother's financial transactions. I then set up an account at my bank, in his name and showing me as P.O.A. Because the people at the bank know me, they trust me. They had me send a Signature Card to my brother to sign (and his attorney signed as witness) and return and then the account was good to go. Now I pay his bills for him - telephone, Master Card and other things. There are different types of POA forms out there. Ask your attorney what you should use. I don't blame someone for not wanting to sign such a form. Why can't he ask his attorney to make up a POA form??????

Ronnie
11-26-2004, 07:28 AM
You should really settle things with the IRS. Even if you are not able to do a compromise, I would set up some sort of payment plan and consistently make those payments. They also forgive some older debts too. I have experienced that also; but the key is to be proactive with them. Do not let them come looking for you--- the end result is always worse.

mrsdragoness
11-26-2004, 08:01 AM
I'm not sure about the laws in your state, but in many states inmates are not allowed to have bank accounts. The IRS may not take his money, but the DOC will! You many want to check into that!

Manzanita
11-26-2004, 04:22 PM
mrs d, how can I check into that docs issue? he does not owe any money to anyone....

ronnie, I know you are right, I am going to deal with this in January for sure.

pipkin
11-26-2004, 04:29 PM
30% of 14,000.00 is $4200.00
I do agree that you should have a "current" status, but who knows, they just want your money. We had a great lawyer that worked our deal (we paid him 10,000.00)...sounds like a lot but he saved us 60 grand so it's worth it to me.

mrsdragoness
11-26-2004, 04:48 PM
mrs g.. check with the DOC itself...

I know that here in Michigan an imate is not allowed to have a bank account. The DOC is allowed to take assets from Michigan inmates to pay for their stay in prison! A friend of my husbands inherited a LARGE sum of money and the state took 90 percent of it because the family member did not put it in a trust.

Manzanita
11-26-2004, 07:06 PM
but in NY they only do that if the inmate has enough money to pay for it.
So I should call the DOC?

thanks for looking out. I did not think of this. I just thought it would be good for him to have something just for him.

Manzanita
11-26-2004, 07:08 PM
I certainly could not pay out 4,200 lump sum, isnt there a way tp pay monthly?

Manzanita
12-27-2004, 12:39 PM
I have another q....

I have been at a new job now for like 6 months and before this I was on a non- payment status with IRS because of lack of money, I have not told them I had a new job yet, should I just start sending them like $50 a month or something on my own, or will they then tell me I have to pay more? Someone told me, they cannot force me to pay a certain amount but that I should pay them something. anyone know? Before this they were making me pay $200 a month!!!

titantoo
12-27-2004, 12:47 PM
[Sorry...for some reason I thought this was a new thread. I think others had already adequately responded and the thread has taken new directions]

I am really not sure but I thought your husband giving you power of attorney gives you the right to do some things as him (eg open a bank account or take money from his)...but it doesn't give anyone additional rights over your legal
identity. The IRS may be able to do what they want, in which case the power of attorney gives them nothing, as far as taking money from you...but I would be astonished if they could take money from your husband , unless its in a joint account. Again the power of attorney would be irrelevent, in my opinion.
Hopefully some other PTOer would know for sure, but I think I am right!




A power of attorney is a document which gives someone authority to act on your behalf on matters that you specify.
The power can be specific to a certain task or broad to cover many financial duties.
The power can be given to start immediately, or only after some event such as mental incapacity

kjh4kjg
01-04-2005, 03:12 PM
the state of missouri will go after any money that they can, even if the debt was incurred before the marriage.....my friend had to file injured spouse for the whole time they were married, so they wouldnt take her part of the the refund for his back childsupport and back taxes.....poa doesnt make him responsible for your debts, only his and the ones that you were to incurr while you are the poa.

kjh4kjg
01-04-2005, 03:22 PM
if i were in the inmates position, i would want someone on the outside looking out for my best interests.....you dont give poa to someone that you dont trust obviously....my fiance likes that i am out here giving him a voice....if the doc decides for some reason to medicate the inmate then say, he signs away his rights to something, that would be horrible, but it happens all the time....because our loved ones arent lawyers, they are bullied, manipulated into giving up their rights to certain things without even knowing that they are doing it.....i dont want that to happen to my husband....he's been screwed enough, i dont want there to be any reason for it to happen again......i dont trust nobody on the inside and im very judgemental of their compacity to perform their duties in the first place.....i believe that a poa is a good thing.......just my opinion.....i get on a roll ......i want what is best for all of our inmates....i think the prison system in this country is appalling.....i cant believe that this is what my tax dollars is spent on....punishing people who have already been punished......

Honeymooner
01-04-2005, 07:02 PM
If I were you, I would not open a bank account. If the debt occured after you were married, the IRS will find a way to get at it. Remember that the bank reports earned dividends to the IRS, and all it takes is his SS# showing earned income to set off the red flags. Keep the money in a fireproof box at home. It's not as if you're losing much on interest.