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

Thu Aug 10 14:43:36 PDT 2017

Thanks for the suggestion, Heather - I had thought of a different title company as being my next step.

The Title Company we are using was agreed to by Buyer and Seller, at Buyer's insistence (Buyer buys and sells many houses).  We could change, if I get nowhere with this Title Company, but we would have to amend the Purchase and Sale Agreement.

I would not think that to be a problem, but I was hoping that someone on the list-serv would have an idea along the line of state regs that would encourage the present title company to back off with this unnecessary inquiry.  Part of the reasoning behind the new statute, was to take away the power that many companies (banks, etc.) assumed they had to demand changes to the POA, or to ignore provisions, per their own whims.

I have since talked one more time to the AIF, who is out of town, and she states that she has a doctor's statement confirming present-day dementia and macular degeneration, and general incompetence. The gentleman can be violent (has been a problem with care-givers) and the fear is, that if given this bad news by the inquiring Title Company employee, he might blow up.  It just seems to fly in the face of reason that when the POA was given immediate effect almost four years ago, that anyone should now feel it necessary to try to now go behind the POA (essentially ignoring it, other than the fact that the AIF would be signing for the Principal, but only after the Principal approves of the sale), with possible very negative effect, including possible physical injury, to the Principal and/or his caregivers.

Regards,

Doug

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
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

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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

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