This column first appeared in the San Antonio Express-News on September 11, 2017.
(Part 4 in a series.) Since the early 1990s, Texas has had an issue with Durable Powers of Attorney (DPOA) which was initiated by the banking lobby. They had convinced the legislature to structure Texas law to give them the power to indiscriminately refuse to accept a DPOA. This resulted in an unacceptable level of uncertainty, because your bank could refuse a request from your Agent for no good reason.
As of September 1, 2017 the law has changed. A new set of procedures has been enacted to help assure that your DPOA can be used when the need arises. Banks, brokers and other financial institutions must follow the new laws, and can no longer reject a DPOA on their whim.
Unless one or more grounds for refusal exist under the new law, a person who is presented with and asked to accept a DPOA has two choices: 1) Accept the Agent’s authority, or 2) Ask for more information. Specifically, the person can ask for a) a Certificate from the Agent which attests to the validity of the DPOA, or b) an opinion from the Agent’s lawyer attesting to the validity of the DPOA, or c) a translation of the DPOA to English if it is not already in English.
If a translation is desired, the person must request it within 5 business days after receiving the Agent’s request for action. When the translation is received, the person can then accept the DPOA or ask for more information as with any other DPOA.
If the person desires a Certificate or Counsel’s opinion, the person must request it from the Agent within 10 business days after receiving the Agent’s request for action (or of receiving the translation). Once the Certificate or Counsel’s opinion is presented by the Agent, the person has 7 business days to accept the DPOA unless other specific grounds for refusal exist.
The new law forbids two fairly common ploys. First, the person may not require that an additional or different form of the power of attorney be presented (too frequently, a bank or broker would insist that only their internal form would be accepted; the new law will not allow that restriction to be imposed). Second, the person may not require that the DPOA be recorded with the county clerk unless recording is mandatory under the statute (which is true only when the DPOA is used for a real estate transaction).
The allowed grounds for refusal are, however, still broad. Any refusal to accept a DPOA must be in writing A few of the key grounds still include:
(1) That the person would not otherwise be required to engage in a transaction with the principal under the same circumstances;
(2) That engaging in the transaction under the same circumstances would be inconsistent with another law, rule or regulation, or would violate a request from the police, or would violate a policy designed to comply with another law, rule or regulation;
(3) That the Certificate, Counsel’s opinion or translation are incorrect, incomplete, unclear, limited, qualified, or otherwise deficient;
(4) That the person knows the DPOA has been revoked, or that the Agent does not have authority as the Agent is claiming, or that there is litigation underway to invalidate the DPOA, or that Coagents are giving conflicting instructions to the person.
It will take some time for everyone to become familiar with this new law, and for banks, brokers, etc. to readily comply. In the meantime, everyone who has signed a DPOA is in a better position to have their instructions followed and thus to receive better care if and when a disability strikes.
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.