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Posted September 17, 2008

Ask An Expert

Legal: What's Best for Power of Attorney -- Bank Forms or Software?

Q. My parents live in New York. My Mom is in assisted living with Alzheimer’s, and Dad has just been placed in rehab. We don't know how long he will need to be there at this time. I had used Nolo Quicken Willmaker 2005 to do all their legal papers. They were duly signed, notarized and witnessed.
 
Now that we need to use the power of attorney, my Dad's bank is not recognizing that form. We need access to CD's in order to pay for both parent’s care. Is this true? Are computer programs, just as Quicken WillMaker and Suze Orman's will maker, invalid in New York? 

Roberta C., Treasure Island, Florida.

A.  I am not familiar with the Nolo Quicken Willmaker, but if it had the proper statutory language (see New York General Obligations Law, Sections 5-1501 through 5-1503), you started out correctly. 

Under Section 5-1504 of the General Obligations Law, a bank or other "financial institution" may not "refuse to honor a statutory short form power of attorney properly executed in accordance" with provisions of the General Obligations Law. 

In practice, however, banks are very reluctant to honor these powers of attorney, if they do not know the named agent or have some way to verify the identity and signature of the agent. From what you say, I suspect that the named agent on the PoA does not have an account with your parents' bank, and thus the bank has no way to be comfortable that the agent is whoever he/she claims to be. 

Banks much prefer to have someone present a power of attorney form in the format used by the bank. These bank PoA forms generally follow the statutory language, but they also require a specimen signature from an agent and contain language to the effect that the principal identifies that signature as the signature of the named agent. When the document is later presented to a bank, the bank officer can then compare the agent's specimen signature on the PoA with a signature the agent provides in the presence of the bank officer.  

The path of least resistance may be to have your mother and father sign bank powers of attorney. 

If either or both can go to the bank one more time, it is generally simpler that way. The bank will supply the notary to witness their signatures, and a specimen signature of the named agent. 

If they cannot go to the bank, ask the bank for two copies of its power of attorney forms, then take them to your father and mother, and have them and the agent sign the document in the presence of a notary. 

If neither of those options applies, the agent might try going to his/her own bank and obtaining a "medallion signature" guarantee of the agent's signature from the agent's own bank. When that is presented to the parents' bank, it may provide their bank with the reassurance it is seeking about the identity of the agent.   

And if none of these approaches work, the last resort may be to go into court and seek guardianship.

This answer is provided by Howard F. Angione, an attorney in Queens, New York, whose practice is devoted to the needs of the elderly and those who care for them. Mr. Angione was the principal editor of Elder Law and Guardianship in New York, a practice guide for attorneys, and of the 5th Edition of Harris Trusts and Estates, a three-volume work for attorneys on probate in New York State. He also is a member of the executive committee of the Elder Law Section of the New York State Bar Association. Mr. Angione can be reached at angione@att.net

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