WILL NEW LAW RESULT IN INCREASED ACCEPTANCE OF DURABLE POWERS OF ATTORNEY?

Many are surprised that financial powers of attorney do not have to be recognized by others including banks and other financial institutions. If the principal (the one who signs the power of attorney) becomes incompetent and the one who is presented with and asked to accept the document, fails to do so, then it is possible that there will be a need to go through the costly procedure of guardianship to have access to accounts such as an IRA or other accounts owned individually by the principal. However, as of September 1, 2017, it becomes mandatory to accept a financial power of attorney upon an agent’s certification of validity or an opinion of counsel within ten (10) business days of presentment unless one or more reasons for refusal are met.

The grounds for refusing acceptance of a durable power of attorney include (but not limited to):

  1. Establishing a new customer relationship;
  2. Being inconsistent with another Texas or federal law;
  3. Being inconsistent with a request from a law enforcement agency;
  4. Belief in good faith that the principal or agent have a prior criminal history involving financial crimes;
  5. A previous, unsatisfactory relationship resulting in material loss, financial management by the agent, litigation between the person and the agent, or multiple nuisance lawsuits filed by that agent;
  6. Agent’s failure to comply with a request for a certification or opinion of counsel; and
  7. If the person believes in good faith that the power of attorney is not valid.

 

There are some other reasons a person or entity can fail to accept the power of attorney, but they must provide a written statement under penalty of perjury if they refuse to accept the power of attorney. Furthermore, the principal or agent may sue a person who refuses to accept a durable power of attorney and could be awarded court costs and attorney’s fees. However, if the refusal to accept was permitted under the law, then the principal may be liable for court costs and attorney’s fees.

 

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