In most of the Six (6) Greater States an agent can demand a third party do business with an agent
A third party enforcement regime operates in five of the Six (6) Greater States
Third parties are given certain rights and protections
The statutory grounds to refuse to deal with agents are similar in the Six (6) Greater States
Legislation in some of the Six (6) Greater States obliges a third party presented with a Power of Attorney to do business with the agent as representative of the principal.
Such schemes permit a third party presented with a Power of Attorney to request a written opinion prepared by a lawyer confirming that the Power of Attorney is valid, an affidavit confirming relevant factual matters and invariably require a third party to do business with an agent upon receipt of any properly requested information and documents, unless specific reasons exist to refuse.
The extent to which these rights exist varies from state to state.
None of the Six (6) Greater States have created these kind of rights in respect of Power of Attorney created by a commercial entity, which are unregulated by legislation in the the Six (6) Greater States.
Consider for example, what might be said to be the most important aspect of the legislation, being the requirement for a third party to accept a Power of Attorney, unless certain grounds for refusal are established.
If it be accepted that access to a third party enforcement regime permitting an agent to go to Court if a third party improperly refuses to accept a Power of Attorney would be a good reason to use a government form
for commercial purposes created by a person
if we look at the question of whether a :-
The following extract from the 1994 California Law Revision Commission Report which led to enactment of Division 4.5 of the Probate Code is informative, speaking of law as it was prior to the amendments and proposed changes (footnotes are in brackets):
Existing law provides a number of rules concerning the relation between attorneys-in-fact and third persons, both in the general agency statutes70 and in the power of attorney statutes.71 These rules protect attorneys-in-fact and third persons without knowledge of some event that would terminate the power of attorney or the authority of the attorney-in-fact. An attorney-in-fact’s lack of knowledge of revocation or termination by death or incapacity may be formalized by the giving of an affidavit — the affidavit is deemed conclusive proof of the facts at the time it is given.72 A third person may be compelled to accept the authority of an attorney-in-fact under a statutory form power of attorney to the same extent as the principal could compel the third person to act.73 The proposed law continues these principles of existing law, but adds several additional rules intended to make powers of attorney more effective. The proposed law sets forth a general duty on the part of third persons to accord the same rights and privileges with respect to the interests of the principal as if the principal were personally present and acting.74 In order to facilitate compliance with this duty, the proposed law protects a third person acting in good faith and protects the third person in relying on the representations of the attorney-in-fact. The attorney-in-fact’s affidavit is broadened and made more effective in the proposed law. The affidavit may be given voluntarily or in response to the request of a third person. A third person who is given an affidavit and refuses to accept the exercise of the attorney-in-fact’s authority covered by the affidavit will be liable for attorney’s fees in any judicial proceedings necessary to confirm the attorney-in-fact’s authority. The proposed law also adds new provisions recognizing the right of third persons to require appropriate identification from the attorney-in-fact75 and specifying when a third person who conducts activities through employees is charged with knowledge that would deprive the third person of statutory protections from liability.76
70. See, e.g., Civ. Code §§ 2342 (warrant of authority), 2343 (agent’s responsibility to third persons), 2355(a) (effect of notice on termination), 2356(b) (effect of lack of knowledge of termination of authority on bona fide transactions).
71. Civ. Code §§ 2403 (effect of death or incapacity of principal), 2404 (affidavit of lack of knowledge of termination of power), 2510(c) (good faith reliance in absence of required warning statement), 2512 (protection of person relying in good faith on durable power of attorney).
72. See Civ. Code § 2404.
73. Civ. Code § 2480.5. See Recognition of Agent’s Authority Under Statutory Form Power of Attorney, 22 Cal. L. Revision Comm’n Reports 965 (1992).
attorney more effective. The proposed law sets forth a general duty on the part of third persons to accord the same rights and privileges with respect to the interests of the principal as if the principal were personally present and acting.
74. This provision is drawn from the Missouri Durable Power of Attorney Law. See Mo. Ann. Stat. § 404.710(9) (Vernon 1990).
75. This provision is drawn from the Missouri Durable Power of Attorney Law. See Mo. Ann. Stat. § 404.719(4) (Vernon 1990).
76. The information must be received at a home office or place where there is an employee who is responsible for acting on the information and the employee has a reasonable time within which to act in light of the procedure and facilities available to the third person in the regular course of its operations. This provision is drawn from the Missouri Durable Power of Attorney Law. See Mo. Ann. Stat. § 404.719(3) (Vernon 1990).
The 1994 California Law Revision Commission Report also provides in respect of §4406:
"Section 4406 is not found in the Uniform Statutory Form Power of Attorney Act (1988). Subdivisions (a) and (b) are drawn in part from Section 13105(b) (compelling payment or delivery under affidavit procedure for collection or transfer of personal property of small estate). See also Section 4305 (affidavit of lack of knowledge of termination of power of attorney). Subdivision (a) permits an agent to bring an action to compel a third person to honor a statutory form power of attorney only to the extent that the principal, disregarding any legal disability, could bring an action to compel the third person to act. Under this rule, a third person who could not be forced to do business with the principal consequently may not be forced to deal with the agent. However, a third person who holds property of the principal, who owes a debt to the principal, or who is obligated by contract to the principal may be compelled to accept the agent’s authority. In addition, as provided in subdivision (b), if the refusal to deal with the agent is found to be unreasonable, the third person will also be liable for attorney’s fees incurred in the action to compel compliance. The determination of reasonableness depends on the particular circumstances of each case. A person to whom the power of attorney is presented may, for example, act reasonably in refusing to accept the agent’s authority where it is not clear that the power of attorney grants the agent authority with respect to the particular transaction. Likewise, a third person may reasonably refuse to honor the power of attorney if, for example, the person is not reasonably satisfied as to the identity of the agent or has information that would lead a reasonable person to question the validity of the power of attorney. See also Section 4303 (protection of person relying in good faith). Subdivision (c) provides some specific guidelines as to the meaning of the reasonableness rule in subdivision (b) as it relates to the liability for attorney’s fees. However, subdivision (d) makes clear that an institution’s preference for its own power of attorney form is never a reasonable ground for refusing to accept the authority of an agent under a properly executed and effective statutory form power of attorney."
NOTE: FIX ‘ATT IN FACT’ TO READ AGENTS, CAPITALISE P OF A - ALSO DO FOOTNOTES IN FIRST BIT
Preventing a principal from varying third party rights in a Power of Attorney seems reasonable, given that a third party is not a party (i.e. does not sign) the Power of Attorney, that is, a third party is not asked to agree to its terms.
It is arguably compelling to prevent variation of third party rights by a principal in states where a third party enforcement regime operates, because the third party may be compelled to do business with an agent on those terms.
The rights of a third party seem largely incapable of being varied in a Power of Attorney in five (5) of the Six (6) Greater States (Illinois being the exception).
In Illinois, §2-4 provides (bold added):
“The principal may specify in the agency the event or time when the agency will begin and terminate, the mode of revocation or amendment and the rights, powers, duties, limitations, immunities and other terms applicable to the agent and to all persons dealing with the agent, and the provisions of the agency will control notwithstanding this Act.” §2-4
Perhaps the reason that Illinois has not included a third party enforcement regime in its legislation is because in Illinois:
§2-4 (cited above) entitles a principal to dictate "rights, powers, duties, limitations, immunities and other terms" with respect to third parties in respect of a Power of Attorney (§2-4)
a third party (being not a party to the Power of Attorney) does not agree to be bound by its terms
it is not appropriate to enable a principal to dictate "rights, powers, duties, limitations, immunities and other terms" with respect to third parties in respect of a Power of Attorney and then potentially be able to enforce those terms, that is, thrust them upon a third party who has not agreed to them
In Texas, similar to California and New York, a difficulty arises because access to the third party enforcement regime is restricted.
In Texas, the third party enforcement regime is only available where the principal has created a Power of Attorney that is durable, although unlike California and Texas it is of no consequence whether a government form is used.
For any person in Texas seeking to access the third party enforcement regime it would be possible to create a Power of Attorney that:-
Such a Power of Attorney seems to satisfy the definition of a durable Power of Attorney in Texas if it contained words to the effect that “this Power of Attorney is unaffected by my subsequent incapacity” about which there may be issues addressed elsewhere in this Wiki, however if the word “unaffected” be construed to mean that the Power of Attorney is intended to continue to operate whether or not the principal has capacity, there appears to be a genuine basis to suggest that the third party enforcement regime could be accessed in respect of such a Power of Attorney.
It might be prudent to ensure that the ‘durable tasks' are not of such a minor nature as to result in quibbling about the ‘genuineness’ of the Power of Attorney, one strategy involving for example the authorizing of a very substantial task in circumstances where the principal lacks capacity, subject to severe and onerous limitations.
In all of the Six (6) Greater States except Illinois, there is legislative provision that works in effect to require an agent upon request from a third party to provide an opinion from Counsel, Affidavit, translation or similar.
Having received all such information or documents, a third party is obliged to notify in writing any refusal to accept the Power of Attorney, identifying their reasons for refusal.
The right of a third party to request verifying documents, Affidavits and similar is provided for in legislation in conjunction with protection of a third party from any dispute in which it is suggested the agent lacked authority to perform any particular transaction.
The statutory grounds upon which a may refuse are different in each state.
In Texas, §751.206 provides this somewhat comprehensive account:
A person is not required to accept a durable power of attorney under this subchapter if:
(1) the person would not otherwise be required to engage in a transaction with the principal under the same circumstances, including a circumstance in which the agent seeks to:
(A) establish a customer relationship with the person under the power of attorney when the principal is not already a customer of the person or expand an existing customer relationship with the person under the power of attorney; or
(B) acquire a product or service under the power of attorney that the person does not offer;
(2) the person's engaging in the transaction with the agent or with the principal under the same circumstances would be inconsistent with:
(A) another law of this state or a federal statute, rule, or regulation;
(B) a request from a law enforcement agency; or
(C) a policy adopted by the person in good faith that is necessary to comply with another law of this state or a federal statute, rule, regulation, regulatory directive, guidance, or executive order applicable to the person;
(3) the person would not engage in a similar transaction with the agent because the person or an affiliate of the person:
(A) has filed a suspicious activity report as described by 31 U.S.C. Section 5318(g) with respect to the principal or agent;
(B) believes in good faith that the principal or agent has a prior criminal history involving financial crimes; or
(C) has had a previous, unsatisfactory business relationship with the agent due to or resulting in:
(i) material loss to the person;
(ii) financial mismanagement by the agent;
(iii) litigation between the person and the agent alleging substantial damages; or
(iv) multiple nuisance lawsuits filed by the agent;
(4) the person has actual knowledge of the termination of the agent's authority or of the power of attorney before an agent's exercise of authority under the power of attorney;
(5) the agent refuses to comply with a request for a certification, opinion of counsel, or translation under §751.201 or, if the agent complies with one or more of those requests, the requestor in good faith is unable to determine the validity of the power of attorney or the agent's authority to act under the power of attorney because the certification, opinion, or translation is incorrect, incomplete, unclear, limited, qualified, or otherwise deficient in a manner that makes the certification, opinion, or translation ineffective for its intended purpose, as determined in good faith by the requestor;
(6) regardless of whether an agent's certification, opinion of counsel, or translation has been requested or received by the person under this subchapter, the person believes in good faith that:
(A) the power of attorney is not valid;
(B) the agent does not have the authority to act as attempted; or
(C) the performance of the requested act would violate the terms of:
(i) a business entity's governing documents; or
(ii) an agreement affecting a business entity, including how the entity's business is conducted;
(7) the person commenced, or has actual knowledge that another person commenced, a judicial proceeding to construe the power of attorney or review the agent's conduct and that proceeding is pending;
(8) the person commenced, or has actual knowledge that another person commenced, a judicial proceeding for which a final determination was made that found:
(A) the power of attorney invalid with respect to a purpose for which the power of attorney is being presented for acceptance; or
(B) the agent lacked the authority to act in the same manner in which the agent is attempting to act under the power of attorney;
(9) the person makes, has made, or has actual knowledge that another person has made a report to a law enforcement agency or other federal or state agency, including the Department of Family and Protective Services, 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 with or on behalf of the agent;
(10) the person receives conflicting instructions or communications with regard to a matter from co-agents acting under the same power of attorney or from agents acting under different powers of attorney signed by the same principal or another adult acting for the principal as authorized by Section 751.0021 , provided that the person may refuse to accept the power of attorney only with respect to that matter; or
(11) the person is not required to accept the durable power of attorney by the law of the jurisdiction that applies in determining the power of attorney's meaning and effect, or the powers conferred under the durable power of attorney that the agent is attempting to exercise are not included within the scope of activities to which the law of that jurisdiction applies.
By contrast, in Florida §709.2120 provides:
(4) A third person is not required to accept a power of attorney if:
(a) The third person is not otherwise required to engage in a transaction with the principal in the same circumstances;
(b) The third person has knowledge of the termination or suspension of the agent's authority or of the power of attorney before exercising the power;
(c) A timely request by the third person for an affidavit, English translation, or opinion of counsel under s. 709.2119(4) is refused by the agent;
(d) Except as provided in paragraph (b), the third person believes in good faith that the power is not valid or that the agent does not have authority to perform the act requested; or
(e) The third person makes, or has 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.
In California, rights to demand a third party accept a Power of Attorney are limited to where a statutory Power of Attorney is used. (§4406)
A third person shall accord an attorney-in-fact acting pursuant to the provisions of a power of attorney the same rights and privileges that would be accorded the principal if the principal were personally present and seeking to act. However, a third person is not required to honor the attorney-in-fact's authority or conduct business with the attorney-in-fact if the principal cannot require the third person to act or conduct business in the same circumstances.
A third person may rely on, contract with, and deal with an attorney-in-fact with respect to the subjects and purposes encompassed or expressed in the power of attorney without regard to whether the power of attorney expressly authorizes the specific act, transaction, or decision by the attorney-in-fact.
When requested to engage in transactions with an attorney-in-fact, a third person, before incurring any duty to comply with the power of attorney, may require the attorney-in-fact to provide identification, specimens of the signatures of the principal and the attorney-in-fact, and any other information reasonably necessary or appropriate to identify the principal and the attorney-in-fact and to facilitate the actions of the third person in transacting business with the attorney-in-fact. A third person may require an attorney-in-fact to provide the current and permanent residence addresses of the principal before agreeing to engage in a transaction with the attorney-in-fact.
(a) A third person who acts in good faith reliance on a power of attorney is not liable to the principal or to any other person for so acting if all of the following requirements are satisfied:
(1) The power of attorney is presented to the third person by the attorney-in-fact designated in the power of attorney.
(2) The power of attorney appears on its face to be valid.
(3) The power of attorney includes a notary public's certificate of acknowledgment or is signed by two witnesses.
(b) Nothing in this section is intended to create an implication that a third person is liable for acting in reliance on a power of attorney under circumstances where the requirements of subdivision (a) are not satisfied. Nothing in this section affects any immunity that may otherwise exist apart from this section.
(a) As to acts undertaken in good faith reliance thereon, an affidavit executed by the attorney-in-fact under a power of attorney, whether durable or nondurable, stating that, at the time of the exercise of the power, the attorney-in-fact did not have actual knowledge of the termination of the power of attorney or the attorney-in-fact's authority by revocation or of the principal's death or incapacity is conclusive proof of the nonrevocation or nontermination of the power at that time. If the exercise of the power of attorney requires execution and delivery of any instrument that is recordable, the affidavit when authenticated for record is likewise recordable.
(b) This section does not affect any provision in a power of attorney for its termination by expiration of time or occurrence of an event other than express revocation or a change in the principal's capacity.
(a) If an attorney-in-fact furnishes an affidavit pursuant to Section 4305 , whether voluntarily or on demand, a third person dealing with the attorney-in-fact who refuses to accept the exercise of the attorney-in-fact's authority referred to in the affidavit is liable for attorney's fees incurred in an action or proceeding necessary to confirm the attorney-in-fact's qualifications or authority, unless the court determines that the third person believed in good faith that the attorney-in-fact was not qualified or was attempting to exceed or improperly exercise the attorney-in-fact's authority.
(b) The failure of a third person to demand an affidavit pursuant to Section 4305 does not affect the protection provided the third person by this chapter, and no inference as to whether a third person has acted in good faith may be drawn from the failure to demand an affidavit from the attorney-in-fact.
Nothing in this chapter requires a third person to engage in any transaction with an attorney-in-fact if the attorney-in-fact has previously breached any agreement with the third person.
Without limiting the generality of Section 4300 , nothing in this chapter requires a financial institution to open a deposit account for a principal at the request of an attorney-in-fact if the principal is not currently a depositor of the financial institution or to make a loan to the attorney-in-fact on the principal's behalf if the principal is not currently a borrower of the financial institution.
In Texas, such as a scheme only applies in respect of durable Powers of Attorney.
A third party who in good faith accepts a durable Power of Attorney without knowledge it is void, invalid or terminated or that an agent is exceeding their authority is entitled to assume that the durable Power of Attorney is valid and effective (§709.209(b)) and may rely upon an agent's certification or opinion of Counsel without further investigation (§709.210).
A third party is entitled to assume that the signature on a durable Power of Attorney is genuine (§751.0022) and similar provision is made in relation to acknowledgements.
§751.209 provides that where a person accepts a durable Power of Attorney in good faith without knowledge the principal's signature is not genuine may rely on the presumption in §751.0022.
(a) As to an act undertaken in good-faith reliance on a durable power of attorney, an affidavit executed by the attorney in fact or agent under the durable power of attorney stating that the attorney in fact or agent did not have, at the time the power was exercised, actual knowledge of the termination or suspension of the power, as applicable, by revocation, the principal's death, the principal's divorce or the annulment of the principal's marriage if the attorney in fact or agent was the principal's spouse, the qualification of a temporary or permanent guardian of the estate of the principal, or the attorney in fact's or agent's removal, is conclusive proof as between the attorney in fact or agent and a person other than the principal or the principal's personal representative dealing with the attorney in fact or agent of the nonrevocation, nonsuspension, or nontermination of the power at that time.
A third party presented with a durable Power of Attorney is obliged to do business with an agent (§751.201) unless any of the grounds set out in §751.206 are made out; and
A third party may request certification of relevant factual matters (§751.203) and notably, under an Affidavit from an agent confirming the agent had no knowledge of termination or suspension of the Power of Attorney is conclusive proof of these matters as between the agent and any third party: §751.055
A third party may request an agent's certification under §751.203 or opinion from Counsel under §751.204 and having received same, has 7 days to decide whether to accept the Power of Attorney (§751.201(b)) unless this period is extended by agreement between the agent and third party (§751.201(c))
Unless a requested agent's certification, Counsel's opinion or translation is provided, a third party is not required to accept a Power of Attorney (§751.201(e))
A statutory cause of action in respect of a refusal to accept a durable Power of Attorney is found in §751.212.
By virtue §751.212 and §751.213 in any suit to determine whether a third party has unreasonably rejected a Power of Attorney the unsuccessful party may be ordered to pay the costs of the proceedings.
With respect to the absence of obligation upon a third party presented with a non-durable Power of Attorney (including a Power of Attorney created by a commercial entity) to do business with an agent, there is no equivalent legislation.
Nonetheless, consider for example a situation where a principal enters a contract with a third party and the other party to the contract subsequently refuses to deal with an agent appointed under a non-durable Power of Attorney.
The refusing party might yet for example, accrue a liability for damages if the third party refused to honour obligations in the contract requiring the third party to deal with the principal by dealing with the agent, there being a proper basis for the principal to assert that their agent under the Power of Attorney is suitably qualified as the principal's representative to deal with the third party.
In Texas, a person who is contemplating the creation of a non-durable Power of Attorney for commercial purposes might consider the advantages of casting a Power of Attorney as a durable Power of Attorney to take advantage of the legislation entitling an agent to rely upon a durable Power of Attorney to require a third party to do business with them.
§751.201 states:
(a) Unless one or more grounds for refusal under Section 751.206 exist, a person who is presented with and asked to accept a durable power of attorney by an agent with authority to act under the power of attorney shall:
(1) accept the power of attorney; or
(2) before accepting the power of attorney:
(A) request an agent's certification under Section 751.203 or an opinion of counsel under Section 751.204 not later than the 10th business day after the date the power of attorney is presented, except as provided by Subsection (c); or
(B) if applicable, request an English translation under Section 751.205 not later than the fifth business day after the date the power of attorney is presented, except as provided by Subsection (c).
(b) Unless one or more grounds for refusal under Section 751.206 exist and except as provided by Subsection (c), a person who requests:
(1) an agent's certification must accept the durable power of attorney not later than the seventh business day after the date the person receives the requested certification; and
(2) an opinion of counsel must accept the durable power of attorney not later than the seventh business day after the date the person receives the requested opinion.
(c) An agent presenting a durable power of attorney for acceptance and the person to whom the power of attorney is presented may agree to extend a period prescribed by Subsection (a) or (b).
(d) If an English translation of a durable power of attorney is requested as authorized by Subsection (a)(2)(B), the power of attorney is not considered presented for acceptance under Subsection (a) until the date the requestor receives the translation. On and after that date, the power of attorney shall be treated as a power of attorney originally prepared in English for all the purposes of this subchapter.
(e) A person is not required to accept a durable power of attorney under this section if the agent refuses to or does not provide a requested certification, opinion of counsel, or English translation under this subchapter.
§751.202 states:
A person who is asked to accept a durable power of attorney under Section 751.201 may not require that:
(1) an additional or different form of the power of attorney be presented for authority that is granted in the power of attorney presented to the person; or
(2) the power of attorney be recorded in the office of a county clerk unless the recording of the instrument is required by Section 751.151 or another law of this state.
§751.203 states:
(a) Before accepting a durable power of attorney under Section 751.201 , the person to whom the power of attorney is presented may request that the agent presenting the power of attorney provide to the person an agent's certification, under penalty of perjury, of any factual matter concerning the principal, agent, or power of attorney. If under its terms the power of attorney becomes effective on the disability or incapacity of the principal, the person to whom the power of attorney is presented may request that the certification include a written statement from a physician attending the principal that states that the principal is presently disabled or incapacitated.
(b) A certification described by Subsection (a) may be in the following form:…
(c) A certification made in compliance with this section is conclusive proof of the factual matter that is the subject of the certification.
§751.204 states:
(a) Before accepting a durable power of attorney under Section 751.201 , the person to whom the power of attorney is presented may request from the agent presenting the power of attorney an opinion of counsel regarding any matter of law concerning the power of attorney so long as the person provides to the agent the reason for the request in a writing or other record.
(b) Except as otherwise provided in an agreement to extend the request period under Section 751.201(c) , an opinion of counsel requested under this section must be provided by the principal or agent, at the principal's expense. If, without an extension, the requestor requests the opinion later than the 10th business day after the date the durable power of attorney is presented to the requestor, the principal or agent may, but is not required to, provide the opinion, at the requestor's expense.
§751.205 states:
(a) Before accepting a durable power of attorney under Section 751.201 that contains, wholly or partly, language other than English, the person to whom the power of attorney is presented may request from the agent presenting the power of attorney an English translation of the power of attorney.
(b) Except as otherwise provided in an agreement to extend the request period under Section 751.201(c) , an English translation requested under this section must be provided by the principal or agent, at the principal's expense. If, without an extension, the requestor requests the translation later than the fifth business day after the date the durable power of attorney is presented to the requestor, the principal or agent may, but is not required to, provide the translation, at the requestor's expense.
§751.206 states:
A person is not required to accept a durable power of attorney under this subchapter if:
(1) the person would not otherwise be required to engage in a transaction with the principal under the same circumstances, including a circumstance in which the agent seeks to:
(A) establish a customer relationship with the person under the power of attorney when the principal is not already a customer of the person or expand an existing customer relationship with the person under the power of attorney; or
(B) acquire a product or service under the power of attorney that the person does not offer;
(2) the person's engaging in the transaction with the agent or with the principal under the same circumstances would be inconsistent with:
(A) another law of this state or a federal statute, rule, or regulation;
(B) a request from a law enforcement agency; or
(C) a policy adopted by the person in good faith that is necessary to comply with another law of this state or a federal statute, rule, regulation, regulatory directive, guidance, or executive order applicable to the person;
(3) the person would not engage in a similar transaction with the agent because the person or an affiliate of the person:
(A) has filed a suspicious activity report as described by 31 U.S.C. Section 5318(g) with respect to the principal or agent;
(B) believes in good faith that the principal or agent has a prior criminal history involving financial crimes; or
(C) has had a previous, unsatisfactory business relationship with the agent due to or resulting in:
(i) material loss to the person;
(ii) financial mismanagement by the agent;
(iii) litigation between the person and the agent alleging substantial damages; or
(iv) multiple nuisance lawsuits filed by the agent;
(4) the person has actual knowledge of the termination of the agent's authority or of the power of attorney before an agent's exercise of authority under the power of attorney;
(5) the agent refuses to comply with a request for a certification, opinion of counsel, or translation under §751.201 or, if the agent complies with one or more of those requests, the requestor in good faith is unable to determine the validity of the power of attorney or the agent's authority to act under the power of attorney because the certification, opinion, or translation is incorrect, incomplete, unclear, limited, qualified, or otherwise deficient in a manner that makes the certification, opinion, or translation ineffective for its intended purpose, as determined in good faith by the requestor;
(6) regardless of whether an agent's certification, opinion of counsel, or translation has been requested or received by the person under this subchapter, the person believes in good faith that:
(A) the power of attorney is not valid;
(B) the agent does not have the authority to act as attempted; or
(C) the performance of the requested act would violate the terms of:
(i) a business entity's governing documents; or
(ii) an agreement affecting a business entity, including how the entity's business is conducted;
(7) the person commenced, or has actual knowledge that another person commenced, a judicial proceeding to construe the power of attorney or review the agent's conduct and that proceeding is pending;
(8) the person commenced, or has actual knowledge that another person commenced, a judicial proceeding for which a final determination was made that found:
(A) the power of attorney invalid with respect to a purpose for which the power of attorney is being presented for acceptance; or
(B) the agent lacked the authority to act in the same manner in which the agent is attempting to act under the power of attorney;
(9) the person makes, has made, or has actual knowledge that another person has made a report to a law enforcement agency or other federal or state agency, including the Department of Family and Protective Services, 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 with or on behalf of the agent;
(10) the person receives conflicting instructions or communications with regard to a matter from co-agents acting under the same power of attorney or from agents acting under different powers of attorney signed by the same principal or another adult acting for the principal as authorized by §751.0021, provided that the person may refuse to accept the power of attorney only with respect to that matter; or
(11) the person is not required to accept the durable power of attorney by the law of the jurisdiction that applies in determining the power of attorney's meaning and effect, or the powers conferred under the durable power of attorney that the agent is attempting to exercise are not included within the scope of activities to which the law of that jurisdiction applies.
§751.207 states:
(a) Except as provided by Subsection (b), a person who refuses to accept a durable power of attorney under this subchapter shall provide to the agent presenting the power of attorney for acceptance a written statement advising the agent of the reason or reasons the person is refusing to accept the power of attorney.
(b) If the reason a person is refusing to accept a durable power of attorney is a reason described by §751.206(2) or §751.206(3):
(1) the person shall provide to the agent presenting the power of attorney for acceptance a written statement signed by the person under penalty of perjury stating that the reason for the refusal is a reason described by §751.206(2) or §751.206(3); and
(2) the person refusing to accept the power of attorney is not required to provide any additional explanation for refusing to accept the power of attorney.
(c) The person must provide to the agent the written statement required under Subsection (a) or (b) on or before the date the person would otherwise be required to accept the durable power of attorney under §751.201.
§751.209 states:
(a) A person who in good faith accepts a durable power of attorney without actual knowledge that the signature of the principal or of another adult directed by the principal to sign the principal's name as authorized by §751.0021 is not genuine may rely on the presumption under §751.0022 that the signature is genuine and that the power of attorney was properly executed.
(b) A person who in good faith accepts a durable 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 on the power of attorney as if:
(1) the power of attorney were genuine, valid, and still in effect;
(2) the agent's authority were genuine, valid, and still in effect; and
(3) the agent had not exceeded and had properly exercised the authority.
§751.210 states:
A person may rely on, without further investigation or liability to another person, an agent's certification, opinion of counsel, or English translation that is provided to the person under this subchapter.
§751.212 states:
(a) The principal or an agent acting on the principal's behalf may bring an action against a person who refuses to accept a durable power of attorney in violation of this subchapter.
(b) An action under Subsection (a) may not be commenced against a person until after the date the person is required to accept the durable power of attorney under §751.201.
(c) If the court finds that the person refused to accept the durable power of attorney in violation of this subchapter, the court, as the exclusive remedy under this chapter:
(1) shall order the person to accept the power of attorney; and
(2) may award the plaintiff court costs and reasonable and necessary attorney's fees.
(d) The court shall dismiss an action under this section that was commenced after the date a written statement described by §751.207(b) was provided to the agent.
(e) Notwithstanding Subsection (c), if the agent receives a written statement described by §751.207(b) after the date a timely action is commenced under this section, the court may not order the person to accept the durable power of attorney, but instead may award the plaintiff court costs and reasonable and necessary attorney's fees as the exclusive remedy under this chapter.
§751.213 states:
(a) Subsection (b) applies to an action brought under §751.212 if:
(1) the court finds that the action was commenced after the date the written statement described by §751.207(b) was timely provided to the agent;
(2) the court expressly finds that the refusal of the person against whom the action was brought to accept the durable power of attorney was permitted under this chapter; or
(3) §751.212(e) does not apply and the court does not issue an order ordering the person to accept the power of attorney.
(b) Under any of the circumstances described by Subsection (a), the principal may be liable to the person who refused to accept the durable power of attorney for court costs and reasonable and necessary attorney's fees incurred in defending the action as the exclusive remedy under this chapter.
§751.214 states:
(a) The following may bring an action requesting a court to construe, or determine the validity or enforceability of, a durable power of attorney, or to review an agent's conduct under a durable power of attorney and grant appropriate relief:
(1) the principal or the agent;
(2) a guardian, conservator, or other fiduciary acting for the principal;
(3) a person named as a beneficiary to receive property, a benefit, or a contractual right on the principal's death;
(4) a governmental agency with regulatory authority to protect the principal's welfare; and
(5) a person who demonstrates to the court sufficient interest in the principal's welfare or estate.
(b) A person who is asked to accept a durable power of attorney may bring an action requesting a court to construe, or determine the validity or enforceability of, the power of attorney.
(c) On the principal's motion, the court shall dismiss an action under Subsection (a) unless the court finds that the principal lacks capacity to revoke the agent's authority or the durable power of attorney.
§709.2119 states:-
(1)(a) A third person who in good faith accepts a power of attorney that appears to be executed in the manner required by law at the time of its execution may rely upon the power of attorney and the actions of the agent which are reasonably within the scope of the agent's authority and may enforce any obligation created by the actions of the agent as if:
1. The power of attorney were genuine, valid, and still in effect;
2. The agent's authority were genuine, valid, and still in effect; and
3. The authority of the officer executing for or on behalf of a financial institution that has trust powers and acting as agent is genuine, valid, and still in effect.
(b) For purposes of this subsection, and without limiting what constitutes good faith, a third person does not accept a power of attorney in good faith if the third person has notice that:
1. The power of attorney is void, invalid, or terminated; or
2. The purported agent's authority is void, invalid, suspended, or terminated.
(2) A third person may require:
(a) An agent to execute an affidavit stating where the principal is domiciled; that the principal is not deceased; that there has been no revocation, or partial or complete termination by adjudication of incapacity or by the occurrence of an event referenced in the power of attorney; that there has been no suspension by initiation of proceedings to determine incapacity, or to appoint a guardian, of the principal; that the agent's authority has not been terminated by the filing of an action for dissolution or annulment of marriage or legal separation of the agent and principal; and, if the affiant is a successor agent, the reasons for the unavailability of the predecessor agents, if any, at the time the authority is exercised.
(b) An officer of a financial institution acting as agent to execute a separate affidavit, or include in the form of the affidavit, the officer's title and a statement that the officer has full authority to perform all acts and enter into all transactions authorized by the power of attorney for and on behalf of the financial institution in its capacity as agent.
(c) A written affidavit executed by the agent under this subsection may, but need not, be in the following form:
…
(3) A third person who is asked to accept a power of attorney that appears to be executed in accordance with s. 709.2105 may in good faith request, and rely upon, without further investigation:
(a) A certified English translation of the power of attorney if the power of attorney contains, in whole or in part, language other than English;
(b) An opinion of counsel as to any matter of law concerning the power of attorney if the third person making the request provides in a writing or other record the reason for the request; or
(c) The affidavit described in subsection (2).
(4) 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 after the time specified in s. 709.2120(1) for acceptance or rejection of the power of attorney.
(5) Third persons who act in reliance upon the authority granted to an agent and in accordance with the instructions of the agent shall be held harmless by the principal from any loss suffered or liability incurred as a result of actions taken before the receipt of notice as provided in s. 709.2121 . A third person who acts in good faith upon any representation, direction, decision, or act of the agent is not liable to the principal or the principal's estate, beneficiaries, or joint owners for those acts.
(6) The acts of an agent under a power of attorney are as valid and binding on the principal or the principal's estate as if the principal were alive and competent if, in connection with any activity pertaining to hostilities in which the United States is then engaged, the principal is officially listed or reported by a branch of the United States Armed Forces in a missing status as defined in 37 U.S.C. s. 551 or 5 U.S.C. s. 5561 , regardless of whether the principal is dead, alive, or incompetent. Homestead property held as tenants by the entireties may not be conveyed by a power of attorney regulated under this provision until 1 year after the first official report or listing of the principal as missing or missing in action. An affidavit of an officer of the Armed Forces having maintenance and control of the records pertaining to those missing or missing in action that the principal has been in that status for a given period is conclusive presumption of the fact.
§709.2120 states:-
(1) A third person must accept or reject a power of attorney within a reasonable time. Four days, excluding Saturdays, Sundays, and legal holidays, are presumed to be a reasonable time for a financial institution or broker-dealer to accept or reject a power of attorney with respect to:
(a) A banking transaction, if the power of attorney expressly contains authority to conduct banking transactions pursuant to s. 709.2208(1) ; or
(b) An investment transaction, if the power of attorney expressly contains authority to conduct investment transactions pursuant to s. 709.2208(2) .
(2) A third person may not require an additional or different form of power of attorney for authority granted in the power of attorney presented.
(3) A third person who rejects a power of attorney for any reason other than as provided in paragraph (4)(a) must state in writing the reason for the rejection.
(4) A third person is not required to accept a power of attorney if:
(a) The third person is not otherwise required to engage in a transaction with the principal in the same circumstances;
(b) The third person has knowledge of the termination or suspension of the agent's authority or of the power of attorney before exercising the power;
(c) A timely request by the third person for an affidavit, English translation, or opinion of counsel under s. 709.2119(4) is refused by the agent;
(d) Except as provided in paragraph (b), the third person believes in good faith that the power is not valid or that the agent does not have authority to perform the act requested; or
(e) The third person makes, or has 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.
(5) A third person who, in violation of this section, rejects a power of attorney is subject to:
(a) A court order mandating acceptance of the power of attorney; and
(b) Liability for damages, including reasonable attorney fees and costs, incurred in any action or proceeding that confirms, for the purpose tendered, the validity of the power of attorney or mandates acceptance of the power of attorney.
§2-8 states:-
"Any person who acts in good faith reliance on a copy of a document purporting to establish an agency will be fully protected and released to the same extent as though the reliant had dealt directly with the named principal as a fully-competent person. The named agent shall furnish an affidavit or Agent's Certification and Acceptance of Authority to the reliant on demand stating that the instrument relied on is a true copy of the agency and that, to the best of the named agent's knowledge, the named principal is alive and the relevant powers of the named agent have not been altered or terminated; but good faith reliance on a document purporting to establish an agency will protect the reliant without the affidavit or Agent's Certification and Acceptance of Authority.
(b) Upon request, the named agent in a power of attorney shall furnish an Agent's Certification and Acceptance of Authority to the reliant in substantially the following form.."
.. CERTIFICATE
(c) Any person dealing with an agent named in a copy of a document purporting to establish an agency may presume, in the absence of actual knowledge to the contrary, that the document purporting to establish the agency was validly executed, that the agency was validly established, that the named principal was competent at the time of execution, and that, at the time of reliance, the named principal is alive, the agency was validly established and has not terminated or been amended, the relevant powers of the named agent were properly and validly granted and have not terminated or been amended, and the acts of the named agent conform to the standards of this Act. No person relying on a copy of a document purporting to establish an agency shall be required to see to the application of any property delivered to or controlled by the named agent or to question the authority of the named agent.
(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 to civil liability for any damages resulting from noncompliance."
§5606 states:
As to acts undertaken in good faith reliance thereon, an affidavit executed by the agent under a power of attorney stating that he did not have at the time of exercise of the power actual knowledge of the termination of the power by revocation, death or, if applicable, disability or incapacity or the filing of an action in divorce and that, if applicable, the specified future time or contingency has occurred, is conclusive proof of the nonrevocation or nontermination of the power at that time and conclusive proof that the specified time or contingency has occurred. The agent shall furnish an affidavit to a person relying upon the power of attorney on demand; however, good faith reliance on the power shall protect the person who acts without an affidavit. If the exercise of the power of attorney requires execution and delivery of any instrument which is recordable, the affidavit when authenticated for record is likewise recordable. This section does not affect any provision in a power of attorney for its termination by expiration of time or occurrence of an event other than express revocation or a change in the principal's capacity.
§5608 states:
(c) Genuineness.--A person who in good faith accepts a power of attorney without actual knowledge that a signature or mark of any of the following are not genuine may, without liability, rely upon the genuineness of the signature or mark of:
(1) The principal.
(2) A person who signed the power of attorney on behalf of the principal and at the direction of the principal.
(3) A witness.
(4) A notary public or other person authorized by law to take acknowledgments.
(d) Immunity.--A person who in good faith accepts a power of attorney without actual knowledge of any of the following may, without liability, rely upon the power of attorney as if the power of attorney and agent's authority were genuine, valid and still in effect and the agent had not exceeded and had properly exercised the authority that:
(1) The power of attorney is void, invalid or terminated.
(2) The purported agent's authority is void, invalid or terminated.
(3) The agent is exceeding or improperly exercising the agent's authority.
(e) Request for information.--A person who is asked to accept a power of attorney may request and, without liability, rely upon without further investigation:
(1) An agent's certification under penalty of perjury of any factual matter concerning the principal, agent or power of attorney or an affidavit under section 5606 (relating to proof of continuance of powers of attorney by affidavit).
(2) An English translation of the power of attorney, if the power of attorney contains, in whole or in part, language other than English.
(3) An opinion of counsel relating to whether the agent is acting within the scope of the authority granted by the power of attorney if the person making the request provides in writing or other record the reason for the request.
(f) Additional request for information.--A person who has accepted a power of attorney, whether or not the person has a certification or an opinion of counsel under subsection (e) or an affidavit under section 5606, and has acted upon it by allowing the agent to exercise authority granted under the power of attorney, shall not be precluded from requesting at later times a certification or an opinion of counsel under this subsection, subsection (e) or an affidavit under section 5606 with regard to any further exercise of authority by the agent under the power of attorney.
(g) English translation.--An English translation or an opinion of counsel requested under this section shall be at the principal's expense, unless the request is made more than seven business days after the power of attorney or any revision or addition to a power of attorney:
(1) is presented for acceptance; or
(2) after being previously accepted by a person, is presented to exercise a power not previously exercised by the agent in a transaction with that person.
§5608.1 states:
(a) Acceptance required.--Except as provided under subsections (b) and (d):
(1) A person shall either:
(i) accept a power of attorney; or
(ii) request one of the following:
(A) an affidavit under section 5606 (relating to proof of continuance of powers of attorney by affidavit); or
(B) a certification, translation or an opinion of counsel under section 5608(e) (relating to acceptance of and reliance upon power of attorney);
not later than seven business days after presentation of the power of attorney for acceptance.
(2) If a person requests a certification, a translation, an affidavit under section 5606 or an opinion of counsel under section 5608(e), the person shall accept the power of attorney not later than five business days after receipt of the certification, translation, affidavit or opinion of counsel or unless the information provided by the certification, translation, affidavit or opinion of counsel provides a substantial basis for making a further request under section 5606 or 5608(e).
(3) A person may not require an additional or different form of power of attorney for authority granted in the power of attorney presented.
(b) Acceptance not required.--A person may not be required to accept a power of attorney if any of the following applies:
(1) The person is not otherwise required to engage in a transaction with the principal in the same circumstances.
(2) Engaging in a transaction with the agent or the principal in the same circumstances would be inconsistent with any provisions of this chapter, including:
(i) the failure of the power of attorney to be executed in the manner required under section 5601(b) (relating to general provisions); and
(ii) circumstances in which an agent has no authority to act because of the absence of an acknowledgment as provided under section 5601(d), except as provided under section 5601(e.1) or (e.2).
(3) Engaging in a transaction with the agent in the same circumstances would be inconsistent with any other law or regulation.
(4) The person has actual knowledge of the termination of the agent's authority or of the power of attorney before exercise of the power.
(5) A request for a certification, a translation, an affidavit under section 5606 or an opinion of counsel under section 5608(e) is refused, including a certification, an affidavit or an opinion of counsel requested to demonstrate that the exercise of authority pursuant to a power of attorney is proper without the notice provided for under section 5601(c), except as provided under section 5601(e.1) or (e.2).
(6) The person in good faith believes that the power of attorney is not valid or the agent does not have the authority to perform the act requested, whether or not a certification, a translation, an affidavit under section 5606 or an opinion of counsel under section 5608(e) has been requested or provided.
(7) The person makes a report to the local protective services agency under section 302 of the act of November 6, 1987 (P.L. 381, No. 79), 1 known as the Older Adults Protective Services Act, stating a good faith belief that the principal may be subject to physical or financial abuse, neglect, exploitation or abandonment by the agent or someone acting for or with the agent.
(8) The person has actual knowledge that another person has made a report to the local protective services agency under section 302 of the Older Adults Protective Services Act stating a good faith belief that the principal may be subject to physical or financial abuse, neglect, exploitation or abandonment by the agent or someone acting for or with the agent.
(c) Violation.--A person who refuses, in violation of this section, to accept a power of attorney shall be subject to:
(1) Civil liability for pecuniary harm to the economic interests of the principal proximately caused by the person's refusal to comply with the instructions of the agent designated in the power of attorney.
(2) A court order mandating acceptance of the power of attorney.
(d) Nonapplicability.--The requirements and penalties of this section shall not apply to:
(1) a power of attorney subject to the laws of another state or jurisdiction; or
(2) a power of attorney prescribed by a government or governmental subdivision, agency or instrumentality for a governmental purpose.