Over the years, I have
some clients tell me that their bank didn’t honor their Power of Attorney and
they don’t know what to do. The stories are consistent, an adult child was
named the primary agent for their elderly Mom, since Dad had recently passed.
Mom has become immobile so that the adult child must manage mom’s financial
affairs and fulfil their agent role under the provisions of Mom’s Power of
Attorney. This scenario is exactly what the Illinois Legislature had in mind
when they drafted the Illinois Power of Attorney Act.
The purpose of the act is to recognize that everyone has
the right to appoint an agent to make property, financial, and personal
decisions throughout the principal’s lifetime, including during periods of
disability. It provides a principal with confidence that a third party, like
a bank, would honor the agent’s authority at all times. Lawmakers wanted to
give principals peace of mind knowing that their affairs would be efficiently
handled, despite any present or future infirmity. However, banks, in their
desire to limit their own liability, frequently refuse to honor a validly
executed power of attorney. This defeats the desires of a principal, who is
unable to manage their personal matters. How will the adult child in the above scenario,
help their mother pay bills? How will the adult child convince the bank to
honor their elderly mother’s power of attorney? This is where an experienced
attorney can help.
The Illinois Power of Attorney Act gives the mother and adult
child the ability to use an attorney to put some teeth into the banks refusal
to act upon a validly executed document. The best method to take a bite out of the
bank is by utilizing an attorney to enforce the Illinois Power of
Attorney Act, specifically, 755 ILCS45/2-8(d). The statute states:
(d) each person to whom a direction by
the named agent in accordance with the terms of the copy of the document
purporting to establish an agency is communicated shall comply with that
direction, and any person who fails to comply arbitrarily or without reasonable
cause shall be subject civil liability for any damages resulting from
noncompliance.
The financial institution and even the banker personally
may be liable to the agent and principal for any losses or damages resulting
from the bank refusal to comply with the directions of a validly executed Power
of Attorney. Once a client has contacted our office, we will work quickly to
ensure the bank’s compliance with the Illinois Power of Attorney Act and ensure
that the adult child in the above scenario can act on their mother’s behalf in
the most effective manner available. The
Law
Office of Jonathan W. Cole
has the knowledge and the power to ensure the bank’s compliance, either through
a simple communication, or by litigation, if necessary. Give us a call at (708)
529-7794. We can resolve this issue.
