I don’t know what’s changed – other than banks hiring poorly trained employees during and post-COVID – but I’ve been getting more and more calls about this in the past several months. And, I’m honestly at a loss when people call me – I personally can’t change banks’ internal procedures, even though they’re breaking state laws.
Recently, a client’s daughter called me from a local Bank of America branch office. I’d drafted her father’s durable power of attorney last year, but he’s been having some cognitive decline recently so she wanted to try to help him. She was at that branch for two hours. The branch personnel told her they couldn’t add her without approval from their legal department. For some unknown reason, the legal department declined to approve her valid, lawyer-drafted Florida durable power of attorney. Under FL law, there are extremely limited, enumerated reasons why a financial institution can refuse to honor a durable power of attorney and they have provide that reason in writing. Bank of America never provided a reason in writing.
A couple of weeks later, the daughter – who works full-time – tried again at another branch. This time she brought her husband. Once again, they gave her the run around and insisted they had to have her father’s verbal permission to add her an agent (what banks call POA) on his accounts. This is so wrong and illegal, it makes me furious! The whole reason our state legislature changed our durable power of attorney laws back in 2011 was to eliminate exactly these shenanigans! She was able to get hold of her father by phone, and luckily he had enough mental clarity to understand what she was trying to do and gave permission, but this never should have happened. What if he’d been in a coma, or so lacking in capacity that he couldn’t lawfully give permission?
Our durable power of attorney laws explicitly state that a durable power of attorney executed after 2011 is valid the minute it’s executed – no proof of incapacity or permission from the principal is required or authorized under the law. Financial institutions are required to accept it except in very limited circumstances (specifically enumerated in the statute). The law does allow an institution to require that the person presenting the durable power of attorney sign an affidavit stating that they believe the document is valid and hasn’t been revoked, and releases the institution from any liability related to any bad acts that may be done by the person presenting the durable power of attorney.
To make matter even worse in this client’s situation, the banker then told my client’s daughter that if they added her a POA on the account, they’d have to remove her as POD (the payable on death beneficiary). Again, totally not true and legally incorrect! Luckily, the daughter’s husband pushed back on that – he explained to the poorly-trained banker that the POA ends when the bank account owner dies, and at that point, the POD beneficiary inherits the account. The banker said he’d try to keep both the POA and POD on the account, and shockingly to him, the system accepted it – because, of course, you can have both a POA and a POD on a financial account. They serve two completely different purposes.
Ugh. Where have excellent customer service and knowledgeable bank employees gone? And why aren’t their legal departments complying with Florida law?
Anyway, some suggestions in light of the new abnormal, abysmal customer service people are receiving from banks today:
- Consider adding the person you named as your primary Agent on your Durable Power of Attorney to your financial accounts now, while you still have capacity. You’ll need to bring that person with you to sign the bank or investment firm’s forms. Yes, that person will then have all the same authority as you do, but not ownership. If you don’t trust that person enough to add them now, he or she shouldn’t be named in your document. Please note: POAs cannot be added to accounts titled in the name of a trust; in that case, you’d need to have a lawyer draft a document adding a current co-trustee on your trust, and then take your trust, the executed co-trustee appointment, and your co-trustee to the bank to have him/her added to your accounts.
- If you’re trying to help Mom or Dad by adding yourself as POA on their financial accounts, print out, read, and bring a copy of the Florida statutes in case the person at the institution gives you the runaround. Here’s the statute regarding when a durable power of attorney becomes effective (709.2108(1)), here’s the one mentioning the affidavit and the release of liability for the accepting institution (709.2119), and here’s the one documenting the only reasons it can be rejected (709.2120).
Other articles/videos you may find interesting:
The Importance of Obtaining Date of Death Values
Ready to make sure everything’s in order for your loved ones in the event you become incapacitated or die? Give Manasota Elder Law a call at 941-444-5958. We’ll help you determine whether you’re all set, or whether there are still some things that need to be done to protect what’s most important to you … your family.
