Husband has a disability and needs help recall info, sick and needs to withdrawal funds from 401k they wont distribute

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Mariashug

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Virginia
My husband has a learning disability. He is out of work due to surgery related to his disability. He has always had issues recalling information and I have always been the person to help him. He needed to withdrawal funds from his 401k due to hardship because he is unable to get full pay while on leave. He called to initiate hardship withdrawal and the rep asked his for his employee ID, my husband has been at his job 17 years and still doesn't know this number and I helped him recall the number and they said that they will not allow him to withdraw any funds from his account because I helped him. I informed them that we have submitted the form to his company already but they say that they hadn't seen it yet. They said because he has had surgery and needed help, they will only share with my husband balance info but not allow him to remove funds until his POA form is received. I am the person that will be identified as his POA.
The company has NOT received the POA yet, they will not allow him access to his funds. My husband provided the answers to all of the questions to confirm his identify. They had us record our voices for the records. I explained that my husband has a disability and has always had issues recalling information.

I feel like they have discriminated against my husband based on his disability and identifying as such. They took the information that we provided and used it against us. They won't allow any changes yet they accepted that he has a POA without the forms. It doesn't make any sense. My husband does not have a large amount of funds in his account. I do recognize that people scam elders and people with disabilities but we explained all of the details and they did not accept this. He has even been locked out of his retirement account.

The POA form was submitted but they haven't received and said that it may take 12-14 days. Any help or guidance is appreciated.
 
Your husband was not discriminated against based upon his disability (at least, not based on how you described it).
Why don't you send a copy of the POA directly to them?
 
Zigner said:
Your husband was not discriminated against based upon his disability (at least, not based on how you described it).
Why don't you send a copy of the POA directly to them?
Click to expand...
When my husband initiated his leave for being out of work and for surgery, the department that processes this information said that he would have to give them permission each time that they spoke to me unless they had a POA on file. I submitted this form. A few days later, we called to find out if the form had been processed they said yes we have it. I said perfect, have you notified the retirement company. I could tell from the response that maybe they were not involved in this process.

I go back to the employers web site and there is a one page document that informs employees if they want to have a POA on file to submit the documents via the process stated. We thought when the department that processes leave received his POA that they entered the submitted POA in the system.

The company that we submitted the POA to is a third party company. They manage leave as well as the POA process although in a different department. We didn't know that the submitted POA was not shared by the leave department since its the same company.

They asked my husband a series of questions regarding his identify and he was able to answer them all correctly. He explained in his own words that he couldn't always remember and that his wife assisted him in this way and always had. He said that he had a disability that caused this.
Based on this reason is why I felt that they discriminated against him. He in sound mind explained the reason, condition, and understood what was going on. They denied him the ability to access his own information by blocking his online account.

If you don't consider it a form of discrimination, what would you classify this as? Please help me understand. Having to tell someone that you have a intellectual disability and always have and you not accept the wishes of the person, deny them access and then without any document in had refuse to allow him to withdraw funds. If I dropped dead today, they will not allow him to remove any money. Why would they accept the fact that I was going to be the POA without any proof so quickly but when he explained the other detail they didn't believe him.

My husband has an intellectual disability which was affected due to some brain damage at birth. He has always been identified as an individual with a disability since birth. He recently started having medical issues related to this disorder and we learned that this surgery was more risky due to the past surgeries. We were try to get documents such as our wills and POA for both of us prior to him going into the hospital.

The issue is not with his employer, they love him. It is with the retirement company.
 
Because 401(k)s are VERY heavily regulated at the Federal level and they could be in serious trouble if they released any funds without the proper signatures and other paperwork on file. This includes any POA's.

It's not discrimination because they are holding him to exactly the same rules as everyone else has to follow, which is precisely what the discrimination laws are designed for. They're not making him do anything that anyone else would not be required to do.

BTW, something you said sent up a red flag with me (I manage benefits, including retirement plans, for a living). Can you confirm the purpose of the withdrawal? Is it to pay outstanding medical bills, or is it to supplement his LTD pay?
 
Just for additional clarification;

As I said, 401(k) plans are VERY heavily regulated by law. Each one has a plan document and that plan document is CARVED IN STONE. The requirements and the processes in that plan document, CANNOT, BY LAW, be varied one iota. If the requirement is that there has to be a POA on file WITH the administrator (as opposed to the sponsoring employer) before funds can be released (and for the reasons described by Zigner in the post above mine there damn will should be such a requirement if there isn't one) then they would be in violation of the law if they gave your husband access to the funds without a POA on file WITH THEM. There is no provision to make exceptions for people with disabilities; these limits are for their, and everyone else's, protection. What if you weren't who you claimed to be and were manipulating him to get access to his money for your own purposes? The requirement for the POA protects your husband, protects you, and protects them; a win-win.

Now, you have a potentially bigger issue that may make the entire question of the POA moot. I realize there hasn't been much time and you maybe didn't even see my first post before this one, but it's very important; what are you intending to use this withdrawal for? There's a HUGE issue related to that, that could make an enormous difference to the whole situation.
 
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Sample

 
You're the lawyer here, but your link is a medical POA. Is that even applicable for the OP for the issue at hand?
 
Foamback said:
You're the lawyer here, but your link is a medical POA. Is that even applicable for the OP for the issue at hand?
Click to expand...

As my children were often heard to say, "Awww dad, you're just saying anything!"

I suggested a "Hail Mary", some might see it as an "eyes closed power swing" hoping to go yard, or even wilder "slap shot going for a goal".

Equal treatment for football, baseball, and ice hockey. :eek::):cool:
 
Foamback said:
You're the lawyer here, but your link is a medical POA. Is that even applicable for the OP for the issue at hand?
Click to expand...

It needs to be a financial power of attorney. The one army judge linked is a medical power of attorney. All that really means is that the terms of the POA in his sample would need to be changed from granting power to make medical decisions for disabled spouse to one granting power to make financial decisions for the spouse.
 
Let me add a bit more explanation. The reason that plan administrators (which often is the employer itself) are sticklers for this is because if they fail to set up the plan properly or fail to manage the plan in compliance with the terms of the plan the employer may face fines for doing so or, worse, the plan will fail to be a qualified plan at all. That would have disastrous tax consequences for the employer and every single plan participant. That in turn would lead to lawsuits by the employees against the plan administrator for mismanagement and failure of fiduciary duty. So it's not just about the administrator's dealings with your husband that are stake here; screwing this up can affect ALL the employees and the employer, costing them all a lot of money. As a result, plan administrators review any hardship withdrawal request carefully to ensure that the plan allows for that withdrawal. If it doesn't, then regardless of how sympathetic the employee's situation is, the administrator may not make that distribution.
 
cbg said:
Because 401(k)s are VERY heavily regulated at the Federal level and they could be in serious trouble if they released any funds without the proper signatures and other paperwork on file. This includes any POA's.

It's not discrimination because they are holding him to exactly the same rules as everyone else has to follow, which is precisely what the discrimination laws are designed for. They're not making him do anything that anyone else would not be required to do.

BTW, something you said sent up a red flag with me (I manage benefits, including retirement plans, for a living). Can you confirm the purpose of the withdrawal? Is it to pay outstanding medical bills, or is it to supplement his LTD pay?
Click to expand...
He has a disability which he has had since he was an infant. He had brain surgery and only earns 60% of his salary. I do not work. They know this. I also managed HR departments for companies with over 10k. My specialty was employment issues such as discrimination, wrongful terminations, sexual harassments etc. I also enrolled and managed documents for 401(k) plans. So I am not entirely ignorant to how discrimination occurs. I am just asking for my own sanity.
 
Tax Counsel said:
It needs to be a financial power of attorney. The one army judge linked is a medical power of attorney. All that really means is that the terms of the POA in his sample would need to be changed from granting power to make medical decisions for disabled spouse to one granting power to make financial decisions for the spouse.
Click to expand...
It was a durable power of attorney. Because he was requiring a complex brain surgery, and were told in the beginning that there could possibly be some complications, serious complications we wanted to get all of our documents in order. This should have been done many years ago but we just didn't address it. Because he is out of work, his is being paid 60% of his pay and I do not work. They know this. I do completely understand the protections that need to be in place. But, someone is telling you, I have a disability, I can't do this on my own, I need help from my wife but your request is denied. Not only is it denied but you are told that they will only allow anything once the POA has been confirmed. What's more frustrating is, you believed him when he mad that statement but when he says something else you don't. They are then informing him that once they get the POA with my name they will then allow him to make adjustments. You wont even allow someone that answered all questions asked and a person who is clearly coherent that you won't allow them access. Why are they even denying him access for a POA when you don't even have one on file. It should still be business as usual.
 
Mariashug said:
I also enrolled and managed documents for 401(k) plans
Click to expand...
Then you know that Federal law prohibits hardship withdrawals for any but six specific reasons. The payment of medical bills IS allowed. A supplement to LTD benefits is NOT.
 
Zigner said:
Your husband was not discriminated against based upon his disability (at least, not based on how you described it).
Why don't you send a copy of the POA directly to them?
Click to expand...
His employer has a third party administrator of the leave program. This company also administers the POA process. In regards to his leave, the third party informed him that they will only speak to me each that we called if he gave permission unless they have a power of attorney on file. We asked how to get it to them and they told us how to submit. We have forms drawn up by our attorneys office (durable POA). We email that form to them which we later learned that this information is NOT shared with the department that manages the POA although its the same company. So the leave department has the POA on file and has no issue. We did submit the forms to them but it could take up to 14 business days to process.
 
Once again, this is not illegal discrimination. They are not holding up the process because he is disabled; they are doing exactly the same thing they would do for anyone else. Once the POA is on file, they will speak with you.
 
Tax Counsel said:
Let me add a bit more explanation. The reason that plan administrators (which often is the employer itself) are sticklers for this is because if they fail to set up the plan properly or fail to manage the plan in compliance with the terms of the plan the employer may face fines for doing so or, worse, the plan will fail to be a qualified plan at all. That would have disastrous tax consequences for the employer and every single plan participant. That in turn would lead to lawsuits by the employees against the plan administrator for mismanagement and failure of fiduciary duty. So it's not just about the administrator's dealings with your husband that are stake here; screwing this up can affect ALL the employees and the employer, costing them all a lot of money. As a result, plan administrators review any hardship withdrawal request carefully to ensure that the plan allows for that withdrawal. If it doesn't, then regardless of how sympathetic the employee's situation is, the administrator may not make that distribution.
Click to expand...
Believe me, I understand that and get it. I used to manage a retirement account for my employers. We submitted a POA to the third party company that manages the leave plan. That same third party manages the POA as well. We had no idea that the submitted POA was not shared with other internal departments so that they could notify the retirement firm.
Even when people go to hospitals, they are asked is there someone who assist you that can help you if needed. In the workplace, all you need to do is make it known that you are identified as a person with a disability and it is recognized and accepted. He is essentially doing the same exact thing except they are ignoring him. They can see that he is on leave from his job, they even said it. He wants to take money out of his account to help with supplementing his salary because he is only being paid at 60% and I do not work. They believed us when we said that the POA was submitted but would not believe us when he correctly answered a multitude of security questions and was clearly coherent. They are holding him to rules when they do not even have a form in hand. A POA is not meant to take his power away but that is what they did.
 
cbg said:
That is NOT an allowable hardship withdrawal reason under Federal law.
Click to expand...
I am sorry, I do understand. He told them that he needed to help pay the bill. In his way of explaining things, this is how he relayed the information. This would have all been understood had they listened to him informing them that he had a disability and didn't understand everything. If someone says that they are blind, you are not going to make them prove it.
 
cbg said:
Once again, this is not illegal discrimination. They are not holding up the process because he is disabled; they are doing exactly the same thing they would do for anyone else. Once the POA is on file, they will speak with you.
Click to expand...
Question. If I told you that I had a visual impairment and had a disability because of it, would you make me prove it to you.
 
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