Is A Financial Institution Required To Accept A Durable Power Of Attorney?

Before September 1, 2017, financial institutions routinely rejected durable powers of attorney for a multitude of reasons. A colleague once told me that a bank rejected her client’s power of because two months had elapsed since the client had signed it and the financial institution argued it was “stale” even though the power of attorney had no termination date.

This is no longer permissible.

Section 751.201 and provisions that follow, now require that unless one or more grounds for refusal exist, a person presented with a power of attorney

  1. must accept the power; or
  2. request an agent’s certification not later than 10 days after the date on which the power of attorney is presented; or
  3. request an attorney opinion not later than 10 days after the date on which the power of attorney is presented; or
  4. request an English translation within 5 days.

If an agent’s certification is requested, the agent must provide a certification under penalties of perjury, of any factual matter concerning the principal, the agent, or the power or attorney. If the power of attorney becomes effective only upon the principal’s incapacity, the person to whom the power is presented may request a written statement from a physician stating that the principal is incapacitated. The statute contains an optional form of certification.

If an attorney’s opinion is requested, the agent must provide the attorney’s opinion regarding any matter of law as long as the person requesting the opinion provides the reason for the request in writing or other record. The principal is responsible for attorney’s fees incurred in obtaining the opinion unless the opinion was requested more than 7 days after the power was presented for acceptance. If more than 7 days has elapsed, the principal or agent may, but are not required to, provide the opinion at the expense of the person requesting the opinion.

If an English translation of any portion of a power that is not in English is requested, it must be provided at the principal’s expense unless it is requested more than 5 days after the power is presented for acceptance. If more than 5 days have elapsed, the principal or agent may, but are not required to, provide the translation at the expense of the person requesting the translation.

 

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