A few years ago, I took my parents’ powers of attorney (“POAs”) to the bank. The bank threw me out, explaining, “We don’t honor POAs. If you’re not on the account agreement, we won’t talk to you.” At the time, that was legal. Anyone could reject a POA, and for good reason, bad reason, or no reason.
That just changed. Effective September 1, 2017, banks and others generally have to accept durable POAs.
“Durable” means the agent may use the POA while the principal is disabled or incapacitated. Texas did not authorize durable POAs before 1972. Not every POA is durable. Look for language like “shall not terminate on disability,” “not affected by the subsequent disability or incapacity,” or “effective on the disability or incapacity” of the principal. If signed from August 28, 1989, to August 31, 1993, the POA must be recorded with the county clerk to be durable. “Durable” may include POAs under military or other state or foreign law. With a translation, even a POA in a different language can qualify.
Before accepting a durable power of attorney, the bank may require the agent to certify all the facts confirming the agent’s authority. The bank is not required to provide a certification form. The statutory form, from Estates Code, Section 751.203, is available below.
A durable POA may be immediate or “springing.” If springing, it is not effective until the principal is disabled, and the bank may require the agent’s certification to add a physician’s statement that the principal is disabled or incapacitated.
The bank may require a legal opinion from the agent’s attorney, at the agent’s expense.
Texas has a standard form, the Statutory Durable Power of Attorney, which is less likely to draw a demand for an opinion letter. The form was first promulgated in 1993. Custom forms are still allowed, but are harder to understand. Assume your agent will be required to provide an opinion letter if you have a custom durable POA, a military POA, or one from another state or country.
If you don’t have a Statutory Durable Power of Attorney, get one, if only to qualify for these new protections.
Consider delivering a copy of your own POA now, before disability, to your banker, broker, IRA custodian, employer, and any other asset custodian or benefits administrator. If more is required to accept your POA, better and cheaper to resolve it now.
Agent’s Certification, from Texas Estates Code § 751.203.
Certification of Durable Power of Attorney by Agent
I, ______________________ (agent), certify under penalty of perjury that:
1. I am the agent named in the power of attorney validly executed by ______________________ (principal)
(“principal”) on _______________________ (date), and the power of attorney is now in full force and
2. The principal is not deceased and is presently domiciled in ______________________ (city and
state/territory or foreign country).
3. To the best of my knowledge after diligent search and inquiry:
a. The power of attorney has not been revoked by the principal or suspended or terminated by the occurrence of any event, whether or not referenced in the power of attorney;
b. At the time the power of attorney was executed, the principal was mentally competent to transact legal matters and was not acting under the undue influence of any other person;
c. A permanent guardian of the estate of the principal has not qualified to serve in that capacity;
d. My powers under the power of attorney have not been suspended by a court in a temporary guardianship or other proceeding;
e. If I am (or was) the principal’s spouse, my marriage to the principal has not been dissolved by court decree of divorce or annulment or declared void by a court, or the power of attorney provides specifically that my appointment as the agent for the principal does not terminate if my marriage to the principal has been dissolved by court decree of divorce or annulment or declared void by a court;
f. No proceeding has been commenced for a temporary or permanent guardianship of the person or estate, or both, of the principal; and
g. The exercise of my authority is not prohibited by another agreement or instrument.
4. If under its terms the power of attorney becomes effective on the disability or incapacity of the principal or at a future time or on the occurrence of a contingency, the principal now has a disability or is incapacitated or the specified future time or contingency has occurred.
5. I am acting within the scope of my authority under the power of attorney, and my authority has not been altered or terminated.
6. If applicable, I am the successor to ______________________ (predecessor agent), who has resigned, died, or become incapacitated, is not qualified to serve or has declined to serve as agent, or is otherwise unable to act. There are no unsatisfied conditions remaining under the power of attorney that preclude my acting as successor agent.
7. I agree not to:
a. Exercise any powers granted by the power of attorney if I attain knowledge that the power of attorney has been revoked, suspended, or terminated; or
b. Exercise any specific powers that have been revoked, suspended, or terminated.
8. A true and correct copy of the power of attorney is attached to this document.
9. If used in connection with an extension of credit under Section 50(a)(6), Article XVI, Texas Constitution, the power of attorney was executed in the office of the lender, the office of a title company, or the law office of __________________________.
Date: ______________, 20______. ________________________________ (signature of agent)