What remedies are there if a bank will not accept a durable power of attorney?
A durable power of attorney may be signed today but many times may not be effective until the principal is no longer able to communicate with his or her healthcare provider. In other words, the person lacks the capacity to make their own healthcare decisions. Lacking capacity usually means that:
the person can't understand the nature and consequences of the health care choices that are available, and is unable to communicate their own wishes for care, either orally, in writing, or through gestures.
However, it is possible in Idaho to have a durable power of attorney that becomes effective immediately. In that case, the agent appointed in the power of attorney would gain the authorities specified in the document immediately.
The Idaho statutes provide a consequence for those who refuse to accept a valid power of attorney. The following are excerpts from the Idaho Uniform Power of Attorney Act:
15-12-119.Acceptance of and reliance upon an acknowledged power of attorney.
(1) For purposes of this section and section 15-12-120, Idaho Code, "acknowledged" means purportedly verified before a notary public or other individual authorized to take acknowledgments.
(2) A person that in good faith accepts an acknowledged power of attorney without actual knowledge that the signature is not genuine may rely upon the presumption under section 15-12-105, Idaho Code, that the signature is genuine.
(3) A person that in good faith accepts an acknowledged power of attorney without actual knowledge that the power of attorney is void, invalid or terminated, that the purported agent’s authority is void, invalid or terminated, or that the agent is exceeding or improperly exercising the agent’s authority may rely upon the power of attorney as if the power of attorney were genuine, valid and still in effect, the agent’s authority were genuine, valid and still in effect, and the agent had not exceeded and had properly exercised the authority.
(4) A person that is asked to accept an acknowledged power of attorney may request, and rely upon, without further investigation:
(a) An agent’s certification under penalty of perjury of any factual matter concerning the principal, the agent or the power of attorney;
(b) An English translation of the power of attorney if the power of attorney contains, in whole or in part, language other than English; and
(c) An opinion of counsel as to any matter of law concerning the power of attorney if the person making the request provides in a writing or other record the reason for the request.
(5) An English translation or an opinion of counsel requested under this section must be provided at the principal’s expense unless the request is made more than seven (7) business days after the power of attorney is presented for acceptance.
(6) For purposes of this section and section 15-12-120, Idaho Code, a person that conducts activities through employees is without actual knowledge of a fact relating to a power of attorney, a principal or an agent if the employee conducting the transaction involving the power of attorney is without actual knowledge of the fact.
15-12-120.Liability for refusal to accept an acknowledged power of attorney.
(1) Except as otherwise provided in subsection (2) of this section:
(a) A person must either accept an acknowledged power of attorney or request an agent’s certification, a translation or an opinion of counsel pursuant to section 15-12-119(4), Idaho Code, within seven (7) business days after presentation of the power of attorney for acceptance;
(b) If a person requests an agent’s certification, a translation, or an opinion of counsel under section 15-12-119(4), Idaho Code, the person must accept the power of attorney no later than five (5) business days after receipt of the certification, translation or opinion of counsel; and
(c) A person may not require an additional or different form of power of attorney for authority granted in the power of attorney presented.
(2) A person is not required to accept an acknowledged power of attorney if:
(a) The person is not otherwise required to engage in a transaction with the principal in the same circumstances;
(b) Engaging in a transaction with the agent or the principal in the same circumstances would not be consistent with federal law;
(c) The person has actual knowledge of the termination of the agent’s authority or of the power of attorney before exercise of the power;
(d) A request for a certification, a translation, or an opinion of counsel under section 15-12-119(4), Idaho Code, is refused;
(e) The person in good faith believes that the power is not valid or that the agent does not have the authority to perform the act requested, whether or not an agent’s certification, a translation or an opinion of counsel has been requested or provided; or
(f) The person makes, or has actual knowledge that another person has made, a report to the local adult protective services office stating a good faith belief that the principal may be subject to physical or financial abuse, neglect, exploitation or abandonment by the agent or a person acting for or with the agent.
(3) A person that refuses in violation of this section to accept an acknowledged power of attorney is subject to:
(a) A court order mandating acceptance of the power of attorney; and
(b) Liability for reasonable attorney’s fees and costs incurred in any action or proceeding that confirms the validity of the power of attorney or mandates acceptance of the power of attorney.