This column first appeared in the San Antonio Express-News and its MySA.com website on July 7, 2015.
Dear Mr. Premack: My mother recently named me as Agent in a perfectly valid, attorney prepared Durable Power of Attorney. Mother is of sound mind but is physically frail, and she asked me to go to her Credit Union to make some changes to her accounts. I presented the Durable POA, and the staffer at the Credit Union said that they don’t accept POAs and could not help me. Now I am angry and confused. How can they turn away a legal, valid POA and deny my mother the help she needs? – O.H.
At various times, my clients have reported to me that some Credit Unions and Banks have internal policies instructing their employees to decline all Powers of Attorney. This means that the frail elderly who have planned, have followed state law, and who rely on assistance may be denied control over their own assets by their own financial institutions. The financial institutions are concerned about liability.
Their concerns about liability can be addressed. Indemnity of third parties (like the bank) is allowed by the Texas Durable Power of Attorney Act. The law used to go even farther, and require banks to accept Durable POAs when the indemnity provision was included. However, over twenty years ago, the banking lobby convinced the legislature to drop that provision from the law, which gave rise to the problems you are experiencing.
The Texas Legislature is aware of the issue, and it was addressed in the recently concluded 84th Session of the Texas legislature. House Bill 3095 was introduced by Rep. Senfronia Thompson. The initial draft of the bill contained a lengthy and detailed provision (proposed section 751.066) entitled “Liability for Refusal to Accept Power of Attorney”. It would have imposed clear and reasonable guidelines for a bank, credit union or any other party to be assured of the validity of a Durable Power of Attorney, and to face liability for a blanket refusal to accept a valid Durable Power of Attorney.
The Bill was supported by the State Bar of Texas and its Section on Real Estate, Probate and Trust Law. It was opposed by the Texas Business Law Foundation. After hearings in the House, the proposed guidelines were removed from the Bill. As modified, it did pass the House but was stalled in Senate committee and died there when the Session ended. Perhaps the 85th Legislature will entertain a similar Bill, and with support from the broader community, it may pass into law.
A well-prepared Durable Power of Attorney should contain an indemnity provision, in which the bank is held harmless so long as it is following the Agent’s instructions. A bank’s front-line employees will not have authority to override bank policy, so when confronted with this problem, you should push to a higher level at the institution. Make an appointment with a Vice President or even the bank President. Eventually you should reach a level where they understand the indemnity and agree to accept the Power of Attorney. Their officers will have more discretion on the issue than do the front-line employees.
In some instances, the problem is compounded when the Durable Power of Attorney is many years old. Institutions tend to shun Powers of Attorney that are from five to ten years old or older. For that reason, you should be sure to see your lawyer to update you Power of Attorney on a fairly regular basis.
In the meantime, the best solution while you are still healthy is to give your bank a copy of your Durable POA. Tell them you expect them to honor its terms, and your Agent may have an easier time if you later become incapacitated.
Paul Premack is a Certified Elder Law Attorney with offices in San Antonio and Seattle, handling Wills and Trusts, Probate, and Business Entity issues. View past legal columns or submit free questions on legal issues via www.TexasEstateandProbate.com or www.Premack.com.