Consumer complaint received 2023-08-03
Product: Checking or savings account — Checking account
Issue: Managing an account — Problem accessing account
Company: BANK OF AMERICA, NATIONAL ASSOCIATION (NY)

In XXXX, 2023, I attempted to record a validly executed Power of Attorney ( POA ) at Bank of America for my husband 's account as he was incapacitated. This included trying to use the Power of Attorney for his business accounts. Bank of America accepted the POA as valid but refused access to his business accounts citing their internal policy of not permitting an agent under a POA to access business accounts. They provided no law or caselaw to support their policy. 

I referred them to the General Obligations Law, NY GOL 5-1502E3d, which provides that in a " short form power of attorney, the language conferring general authority with respect to business operating transactions, must be construed to mean that the principal authorizes the agent : d.to demand and to receive all moneys which are, or may become, due to the principal, or which may be claimed by the principal or on his behalf, in the operation of such enterprise, and to control and to disburse such funds in the operation of such enterprise in any way which the agent shall think to be desirable or necessary, to engage in any banking transactions which the agent shall think to be desirable or necessary for effectuating the execution of any of the powers of the agent described in this subdivision ; Clearly, if the statute defines business operating transactions to include banking powers, it is not illegal for an LLC account owner to designate an agent under a validly executed power of attorney. 

In addition, I have been given no legal authority that supports the position that single member LLCs can not appoint a POA. In fact, the IRS permits this. See https : XXXX. 

NY GOL 5-1504 ( 1 ) provides 1.No third party located or doing business in this state shall refuse, without reasonable cause, to honor a statutory short form power of attorney properly executed in accordance with section 5-1501B of this title, including a statutory short form power of attorney which is supplemented by a statutory gifts rider, or a statutory short form power of attorney properly executed in accordance with the laws in effect at the time of its execution. 

Reasonable cause is defined by several instances in the statute, none of which provide that a POA can be denied because the agent is using it for a business.

NY GOLD 5-1504 ( 2. ) providesExcept as provided in subdivision three of this section, it shall be deemed unlawful for a third party to unreasonably refuse to honor a properly executed statutory short form power of attorney, including a statutory short form power of attorney which is supplemented by a statutory gifts rider, or a statutory short form power of attorney properly executed in accordance with the laws in effect at the time of its execution. 

Despite my attempts to point BOA to New York law, I was never contacted by their legal department. I was denied use of the POA to my detriment as we were unable to access the accounts during my husband 's incapacity. I received no meaningful explanation as to why the POA was rejected other than internal policy. It is my position that this policy runs afoul of NYS law and Bank of America has not taken the proper steps to remedy the situation, or indeed even defend it's position.