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CalAttorney2
CalAttorney2, Attorney
Category: Legal
Satisfied Customers: 10244
Experience:  Civil litigation attorney for individuals and businesses.
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MY MOTHER HAS AN IRA AND HAS MADE SEVERAL WITHDRAWS FROM IT

Customer Question

MY MOTHER HAS AN IRA AND HAS MADE SEVERAL WITHDRAWS FROM IT ALREADY. NOW THEY ARE HOLDING THE FUNDS FROM HER SAYING THAT THERE IS A PENDING INVESTIGATION. THEY CALLED ADULT PROTECTIVE SERVICES ON ME, HER SON, WHO HAS POA FOR FINANCIAL PURPOSES. APS SAYS BASED ON THIER INVESTIGATION THERE WERE NO DISCREPANCIES AND FOUND NO EVIDENCE OF MISAPPROPRIATION. MY MOTHER WAS THE ONE WHO SIGNED ALL LEGAL PAPERS FOR THE WITHDRAWS OF THE MONEY. DOES THE BANK HAVE THE RIGHT TO WITHHOLD FUNDS FROM HER?
Submitted: 11 months ago.
Category: Legal
Expert:  CalAttorney2 replied 11 months ago.

Dear Customer,

Thank you for using our forum. My name is ***** ***** I hope to assist you today.

I am sorry to learn about this situation.

While the bank did have the right to forward a potential concern to APS (this is a protected act), once the investigation returned a finding that there was no impropriety or misappropriation, the bank is obligated to release any and all funds as directed by either your mother, or her designated POA.

If they fail to do so they are violating the account holder's agreement.

You can file a complaint with them for failing to release funds at this time with the New Mexico Department of Regulation and Licensing: http://www.rld.state.nm.us/financialinstitutions/File_a_Complaint.aspx

Customer: replied 11 months ago.
According to the APS agent , she said they would be sending me a letter in a week or two for the final conclusion of the investigation. If hasn't been two weeks yet, so the investigation might still be pending. In that case can the bank still withhold the funds from her?
Expert:  CalAttorney2 replied 11 months ago.

The bank can hold the funds pending a resolution from APS.

Contact the APS worker and ask them to send an interim notice to the bank at a minimum releasing funds so that your mother has cash to pay her immediate bills.

Customer: replied 11 months ago.
I CALLED AND NOW APS IS ASKING IF WE CAN SEND THEM YOUR RESPONSE, BECAUSE NOW IT PUTS THEM IN A LEGAL ISSUE. THEY ASKED WHO MY LAWYER WAS THAT GAVE ME THIS ADVICE.
Expert:  CalAttorney2 replied 11 months ago.

Unfortunately, this is a "general information forum" only, and we cannot act as your attorney.

You will need a local attorney to provide you with specific advice or to act as your local referral if APS needs an attorney as counsel for this matter.

You can find local attorneys using the State and local Bar Association directories, or private directories such as www.AVVO.com; www.FindLaw.com; or www.Martindale.com (I personally find www.AVVO.com to be the most user friendly).

Customer: replied 11 months ago.
I understand that this is a forum and that you are not my attorney. However, can I email this information to her where it states about the interim notice. That what she was asking for.
Expert:  CalAttorney2 replied 11 months ago.

You can send it to her, but I am not your attorney, and this isn't construed as legal counsel.

APS generally has their own legal counsel as well (usually the County Counsel's Office) that can advise them on these matters.

But really, all you are asking APS to do is to release funds to support your mother's basic needs pending the final resolution of their investigation - if failure to release such funds places her at risk (no food, rent becomes delinquent, etc.) this is a very specific and direct request which most departments will agree to.

Customer: replied 11 months ago.
ok thank you. I appreciate all your help.
Customer: replied 11 months ago.
What kind of lawyer would be best to assist this issue?
Expert:  CalAttorney2 replied 11 months ago.

Usually a probate attorney is going to have the most experience with APS issues (A probate attorney is a trusts and estates attorney that deals with litigation issues - so they appear in probate court, where most APS/Conservatorship matters are handled).