Which States have Laws Requiring Financial Institutions to Accept Durable Powers of Attorney?
I’ve read that some states have enacted statutes that require financial institutions to honor durable powers of attorney. Do Massachusetts and New York have these statutes? And, I guess this then begs the question, which jurisdiction applies—the bank’s or the client’s?
Those are important questions because many banks and other financial institutions are notorious for refusing to honor perfectly good durable powers of attorney. Some have a policy, which I call a “staleness” doctrine, under which they will not honor older documents. This is rather perverse since presumably the account holder was more competent and less likely to be subject to undue influence when he signed the older document than he might be immediately before the power of attorney needs to be used.
Other institutions have their own power of attorney forms that they’re more likely to accept. Because of this, we advise clients to check with the financial institutions where they have accounts to see if they have their own forms and, if so, to sign them as well as the general durable power of attorney form that we prepare for them.
In response to the recalcitrance of many financial companies, New York has enacted a law requiring that powers of attorney be honored if certain requirements are met. Massachusetts has not done so.
The law that should govern is the law of the state in which the financial institution is located. So, if a Massachusetts resident has a Massachusetts durable power of attorney and the agent attempts to use it to access an account at a New York bank, the New York law should apply. The power of attorney, however, would have to meet any requirements imposed by New York law. On the other hand, if the account were in a Massachusetts branch of a New York bank, then Massachusetts law would apply.
If you were in the opposite situation, trying to use a New York power of attorney to access an account in a Massachusetts bank, you could argue that New York law should apply because the states are supposed to give full faith and credit to the laws of other states, but I think that would be a more difficult argument to win.