San Antonio Express-News
July 13, 2004

Be Persistent if Bank Refuses DPoA

copyright 2004, Paul Premack

The banking lobby got to the legislature in 1993 when the Texas Durable Power of Attorney Act was passed. The former statute contained a provision that stated "If a durable power of attorney contains language authorizing the attorney in fact or agent to indemnify and hold harmless any third party who accepts and acts under the power of attorney, then the third party shall recognize the authority of the attorney in fact or agent and transact with the person in the same manner and to the same extent as the third party would transact with the principal."

That was replaced with a sentence in the suggested form for the statutorily durable power of attorney that read simply "I agree that any third party who receives a copy of this document may act under it." Third parties are protected, but not required to act under a durable power of attorney. The Texas statute says, "When a durable power of attorney is used, a third party who relies in good faith on the acts of an… agent within the scope of the power of attorney is not liable to the principal."

The bottom line: a bank or credit union can legally turn its nose up at your exceedingly well-drafted, properly executed durable power of attorney. What are you going to do about it?

First, ask the bank what they perceive to be the problem. They may ask for something simple that can be adjusted. Often, an accommodation is much easier than a battle, even if you think that what they are asking for is ridiculous. As Agent you can execute an affidavit that protects third parties from claims that the power of attorney is already revoked. You can ask the bank if that would make any difference to them.

Second, ask yourself if you can involve the principal (in this case, your mother) in the transaction. Although the goal was for you to take over, her involvement in telling the bank to listen to you may break the ice. Or, if the bank is still inflexible, the solution may be to stop doing business with that institution. Substitute a locally owned and operated bank, which is far more likely to be obliging, especially if you open the new accounts based on the power of attorney.

Finally, be tenacious. Some financial institutions will work with an agent if it becomes clear that person is sincere and refuses to accept no for an answer. If the teller says no, ask for the supervisor. If the supervisor says no, ask for the vice-president. Someone up the corporate ladder may approve your request. When they see that your goal is to provide honest assistance to your mother, they should accept her wishes and accommodate you.