Dear Mr. Premack: My mother named me as agent in her durable power of attorney about ten years ago. Over the last six months she has become increasingly confused, and hasn’t been able to keep track of her expenses or to pay her bills on time. I asked her if she thought it was time for me to help with those things and she agreed. When I took her power of attorney to the credit union they turned me away, saying they don’t accept powers of attorney. I was irate. What options do I have, and why would they refuse a perfectly valid power of attorney? – T. O.

It is understandable that the credit union would be cautious; they want to be sure that they are protecting their customer. Even so, a flat refusal to accept a legally valid power of attorney is an outrage and the credit union should be taking a drastically different approach.

The root of the problem is a change to Texas law that occurred in 1993. Prior to that date, the law stated that a third party (like the credit union or a bank) was required to accept a power of attorney if it contained a clause indemnifying them from liability for the agent’s actions. The banking industry convinced the legislature to repeal that legal requirement.

Instead, Texas law now has a provision that allows the agent to reassure third parties that the authority granted in the power of attorney remains valid. The agent can sign an affidavit affirming that the principal (in your situation your mother is the principal) has not revoked the agent’s authority, that the principal is still alive, and that nothing else has occurred to invalidate the power of attorney.

That affidavit legally is "conclusive proof" that the power of attorney is at that moment still effective. The law further states that when a third party relies in good faith on the acts of the agent within the scope of the power of attorney, the third party will have no liability to the principal.

After receiving assurance that the power of attorney is valid, the credit union should review the powers granted to you by your mother as set out in the power of attorney. Ideally, the lawyer who wrote it for you created a power of attorney that is "general" and "statutory" and "durable". Let me define each of those terms:

• A general power of attorney includes a broad statement that the agent can perform any action that the principal could perform, without limitation. Logically, such a blanket authorization should be enough to allow the agent to do anything, but various laws expect explicit authorization for certain actions like power to give gifts on the principal’s behalf.
• A statutory power of attorney includes reference to the Texas Durable Power of Attorney Act and incorporates the detailed authorizations that are set out in the statute. It includes, for instance, authority for you to modify or terminate any existing bank account, to make deposits and withdrawals from any account and to use any services provided by banks, credit unions or other financial institutions.
• A durable power of attorney states that it will continue to be valid even if the principal becomes incapacitated. Without this statement, you would have no authority to act after your mother loses capacity to handle her own business. When it is included, your authority continues until your mother revokes the power of attorney or until her death.

If the request you are making of the credit union is within the bounds set out in the power of attorney, they have little reason to refuse your request. At this point, you should deal with a higher official at the credit union (like a vice president). Show the original power of attorney, offer to sign an affidavit affirming its validity, and make clear exactly what you want the credit union to do for your mother.