What is a power of attorney (POA)? What does it mean for your bank when there is fraud? Do you know the right questions to ask when accepting a power of attorney?
A POA is a document that authorizes one person, the Attorney-in-Fact, to act on behalf of another person, the Principal (your customer). In the fiduciary relationship, the Attorney-in-Fact must use extra care and good faith when dealing with the affairs of the Principal.
What does it mean for your bank when the Attorney-in-Fact breaches their fiduciary duty? In a recent Community Bankers Webinar Network webinar, Elizabeth Fast explained “The law provides protections for third parties, like your bank. Your bank can freely rely on and contract with an Attorney-in-Fact with respect to the subjects and purposes encompassed or expressed in the POA document. You have the right to assume that they are acting properly, and if your bank acts in good faith in dealing with the Attorney-in-Fact, you will be protected from liability of the unscrupulous Attorney-in-Fact.”
What questions should your bank ask when accepting a power of attorney? Elizabeth provided a checklist of 10 important questions your team should ask every time when accepting a POA.
- Should this Power-of-Attorney be reviewed by the financial institution’s legal counsel?
- Is the principal still alive?
- Is this Power-of-Attorney current?
- Does this Power-of-Attorney comply with all of the financial institution’s policy requirements? Only permit “durable” Power-of-Attorney? Require all joint owners to consent? Only permit one Attorney-in-Fact?
- Does this Power-of-Attorney authorize this specific transaction?
- Does this Power-of-Attorney have springing language or has the springing condition been met?
- Does this Power-of-Attorney authorize multiple Attorneys-in-Fact? Must all Attorneys-in-Fact sign jointly or can one Attorney-in-Fact sign independently?
- Does the financial institution have a copy of the Power-of-Attorney on file?
- Did the financial institution obtain the Attorney-in-Fact’s signature on the signature card?
- Did the financial institution obtain CIP information about the Attorney-in-Fact?
Elizabeth’s webinar, Handling POAs & Living Trust Documents on Deposit Accounts & Loans, covers the various types of power of attorney documents and when they can be used, identifies actions the Attorney-in-Fact and trustee can and cannot take on behalf of an account holder, differentiates between an Attorney-in-Fact, representative payee, and an authorized or convenience signer, explains who can sign for the living trust and whether all trustees must sign the account and/or loan documents, and covers how to reduce your bank’s risk from POAs and living trusts. She also provides checklists of items to request when making a loan to a living trust and items to request when opening a deposit account for a living trust.
Use code POA10 for 10% off when you purchase this webinar.
Tess Bower | Marketing Manager | Community Bankers Webinar Network