Saint Paul, MN asked in Contracts, Estate Planning and Family Law for Minnesota

Q: Does the principle have to be present at a TX bank, if both co-agents of a DPOA want to modify the principles account?

My cousin and I are both the agents (acting jointly) for our Aunt, who's 79 yrs old, on a durable power of a attorney.

The Principle has diminished mental capacity, is a US citizen currently living in the Philippines. One agent is in Nevada, the other agent is in Minnesota. Only one agent is a US citizen, the other has a visa. The DPOA was created in the Philippines. The document was signed and notarized by a consular agent at a US Embassy in the Philippines.

1 Lawyer Answer
Joshua Damberg
Joshua Damberg
  • Estate Planning Lawyer
  • Maple Grove, MN
  • Licensed in Minnesota

A: Generally, the answer to this is no. The Principal should not need to be present for his or her Attorney(s)-in-Fact to use the Power of Attorney document. In light of the recent epidemic of misuse of POAs and the exploitation of the elderly, many banks have attempted to institute additional policies and layers of red tape. So long as the Power of Attorney was validly executed, the bank SHOULD recognize it. You and/or your cousin may need to push back against bank policy and make the institution identify a legal basis for what they are asking.

Here in Minnesota, the Statutory Short Form Power of Attorney can be enforced through MN laws if a bank refuses to recognize it. I am not licensed in Texas and I am not knowledgeable of TX law, but many states have similar statutes that honor POAs executed in other states and even in foreign jurisdictions, such as the Philippines. I am assuming that the "TX Bank" in your initial query is not a typo.

This situation seems a little odd/tricky with the various/competing jurisdictions in play (Nevada, Minnesota, Texas, and the Philippines. If the POA requires both co-AIFs to act jointly, the issue may be that both you and your cousin must be physically present at the bank, at the same time, for them to authorize transactions related to your aunt's account. Again, if it is a valid POA, your aunt (the Principal) should not need to be present. The purpose of a POA would largely be defeated if this were the case.

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