[WSBAPT] Acceptance (or Non-Acceptance) of Durable Power of Attorney by Title Company Under the New Uniform Power of Attorney Act

[John Creahan]

Doug,
I have never dealt with anything close to this issue, but I can see why the title company would be reluctant. As I understand it, when he gave his son the power to sell the house, the father did not relinquish his power over the asset. That puts the title company in a difficult position if the father is opposed to the sale.
Removing the father's power to decide might help resolve the issue, but that would likely require either a trust or guardianship.
Hope this helps,
John

John Creahan
www.cairn-law.com<http://www.cairn-law.com/>
Now located in the heart of Fremont
3417 Evanston Ave. N, Suite 312
Seattle, WA 98103
206-578-5877


From: wsbapt-bounces at lists.wsbarppt.com [mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of Heather deVrieze
Sent: Thursday, August 10, 2017 1:43 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
Subject: Re: [WSBAPT] Acceptance (or Non-Acceptance) of Durable Power of Attorney by Title Company Under the New Uniform Power of Attorney Act

Can you change to a different escrow/title company?

Heather


Heather S. de Vrieze
Attorney-at-Law
[cid:image001.jpg at 01D013C2.30F35160]
3909 California Avenue SW
Seattle, WA 98116-3705
(206)938-5500
heatherd at westseattlelaw.com<mailto:heatherd at westseattlelaw.com>
www.westseattlelaw.com<http://www.westseattlelaw.com/>
Click here to connect with de Vrieze | Carney on Facebook:   [FB Logo] <https://www.facebook.com/DeVriezeCarney>

CONFIDENTIAL & PRIVILEGED. This e-mail message may contain legally privileged and/or confidential information.  If you have received this e-mail in error, please notify the sender immediately and delete all copies of this e-mail message and any attachment.

From: wsbapt-bounces at lists.wsbarppt.com<mailto:wsbapt-bounces at lists.wsbarppt.com> [mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of Douglas Bratt
Sent: Thursday, August 10, 2017 1:17 PM
To: wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>
Subject: [WSBAPT] Acceptance (or Non-Acceptance) of Durable Power of Attorney by Title Company Under the New Uniform Power of Attorney Act

Listmates:

Elderly person (now in his mid-nineties) signed a Durable Power of Attorney (DPA) (covering both health care and financial affairs) in 2013, naming his child as Attorney-in-Fact (AIF), effective IMMEDIATELY.

Elderly person's care in a care facility has now required most of his liquid assets, so AIF has determined that it is necessary that his house be sold to provide the necessary funds for continued care.  Earnest Money Agreement was entered into for the sale of the elderly person's residence, and escrow was opened at a local branch of a prominent Title Company to close the sales transaction.

There was some initial insistence from Title Company that it needed to follow its "internal POA Checklist" which includes wanting to contact the elderly person "to confirm that he is aware of the sale."  THE AIF already knows that the elderly person does NOT want his home sold (as would be expressed by most elderly person as he/she is about to lose even more of the things that had meaning in his/her life), so the AIF has, so far, resisted the request.   Title Company made noises about not wanting to close the transaction.

I was then consulted by the AIF, and have prepared a Certification form, per RCW 11.125.190 and RCW 11.125.430, with the intention of recording that form, with the original signed DPA attached thereto.

I shared the proposed Certification form, the DPA, copies of RCW 11.125.190 and RCW 11.125.200, and the Purchase and Sale Agreement, with the Title Company, and their underwriting department and their title department "reviewed and approved" them, but, once again, it was stated that the LPO was still to follow the Title Company's "internal POA Checklist" which includes wanting to contact the elderly person "to confirm that he is aware of the sale."

I have no idea as to whether the elderly person can even communicate on the phone, but I am left to wonder that if the elderly person said he did not want the sale to take place, no matter how necessary for his continued care, would the title company back off?

It seems to me that RCW 11.125.200 is emphatic that parties being asked to accept a DPA cannot ask for changes to the form, or additional provisions, and that parties can be hauled into court to be ordered to accept a POA and to get nailed for costs and attorney's fees if they take things that far.

However, there are some seemingly valid reasons set out in RCW 11.125.200 for a party to be able to refuse to "accept an acknowledged POA." In my opinion, none of them (except for one) are possibly applicable in this situation.  The one about which I have doubts is RCW 11.125.200(2)(a).  I am having a bit of trouble interpreting RCW 11.126.200(2)(a) which says that a party can refuse to accept the POA if "the party is not otherwise required to engage in a transaction with the principal in the same circumstances."

I believe that that provision could not be depended upon by a bank at which the Principal has accounts, when an AIF approaches with a POA, but I have a question as to whether a title company can, seemingly willy nilly, refuse to accept the POA on the basis of not being required to engage in the transaction with the principal in the same circumstances.  Are there any sort of regulations governing a title company that would require it to take on customers, come one and come all, on some sort of an equal accommodation sort of theory, like the bakeries and the florists who have been called on the carpet for refusing to provide services for LGBTQ couples who are marrying?

If the Principal, perhaps very much deranged, expresses outrage at the proposed sale of his/her property when contacted by the Title Company, could the title company, on that basis alone, refuse to close the transaction??  Doesn't that defeat the very purpose of the POA, particularly one which was put into effect to be effective immediately?

I realize that a Principal can revoke a DPA, but that would most certainly lead to the filing of a Guardianship proceeding the purpose of which would be to protect the Principal who is under difficult circumstances, and which would most probably result in the sale of the residence in the long run if the funds were required for his care, albeit after much delay and much expense.

I realize this is a long posting and might not even be read by some of the Listserv members (we are all too busy), but I would appreciate comment by anyone with any suggestions or thoughts about this situation.

Best Regards,

Doug Bratt

Douglas J. Bratt
Lawyer

[Envelope scaled Terry]

Office: (360) 213-2040
 Fax: (360) 213-2030

CONFIDENTIALITY NOTICE:  This email message may contain confidential or privileged information.  If you have received this message by mistake, please do not review, disclose, copy, or distribute the email. Instead, please notify us immediately by replying to this message or telephoning us.  Thank you.

NOTE:  I do not use encrypted email.  Messages sent to or from my office via email are not secure and may not be protected by attorney-client privilege.  This email address is not monitored at all times.  If your matter is urgent, please phone my office during regular business hours.


-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mailman.fsr.com/pipermail/wsbapt/attachments/20170810/8b0f23b8/attachment.html>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image001.jpg
Type: image/jpeg
Size: 6224 bytes
Desc: image001.jpg
URL: <http://mailman.fsr.com/pipermail/wsbapt/attachments/20170810/8b0f23b8/image001.jpg>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image003.png
Type: image/png
Size: 4594 bytes
Desc: image003.png
URL: <http://mailman.fsr.com/pipermail/wsbapt/attachments/20170810/8b0f23b8/image003.png>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image006.jpg
Type: image/jpeg
Size: 7689 bytes
Desc: image006.jpg
URL: <http://mailman.fsr.com/pipermail/wsbapt/attachments/20170810/8b0f23b8/image006.jpg>