In response to the Bank's actions, Rose filed a petition claiming that the trust was damaged by the Bank's willful and wanton refusal to transfer Maenhoudt's assets to the trust. In February 2004, Rose filed a motion for summary judgment, arguing that the Kansas Supreme Court's opinion in Bank IV Olathe v. Capitol Fed'l Savingss&sLoan Ass'n, 250 Kan. 541, 828 P.2d 355 (1992), essentially required the Bank to immediately accept the durable POA. The Bank responded by filing its own motion for summary judgment, claiming that Kansas law and Bank IV do not require a state banking institution to recognize either a durable POA or a trust agreement.
A third party generally cannot be liable for allowing an action specifically authorized by a power of attorney. See Vinogradova v. Suntrust Bank, Inc. , 162 Md.App. 495, 875 A.2d 222, 228 (2005), abrogated on other grounds by Plank , 469 Md. 548, 231 A.3d 436 ; see also, e.g., Bank IV, Olathe v. Capitol Fed. Sav. & Loan Ass'n , 250 Kan. 541, 828 P.2d 355, 364–65 (1992). Here, the power of attorney granted Key the authority to make withdrawals from Allen's accounts.
The Bank argues that the power of attorney conferred on Epstein a general, unlimited authority to operate the plaintiffs' accounts and that the limitations in the power of attorney related only to the fiduciary relationship between the plaintiffs and Epstein and not to it. If Epstein had general authority over the account, the Bank is not liable for breach of the deposit agreement. See, e.g., Empire Trust v. Cahan, 274 U.S. 473, 479, 47 S.Ct. 661, 71 L.Ed. 1158 (1927) (pre-Erie federal common law); Nashville Trust v. Southern Buyers, Inc., 40 Tenn. App. 11, 288 S.W.2d 469, 471-72 (1956); Milner v. Milner, 183 W. Va. 273, 395 S.E.2d 517, 521 (1990); Bank IV, Olathe v. Capitol FederalSavings Loan Ass'n, 250 Kan. 541, 828 P.2d 355, 364-65 (1992); Long v. Watkins, 271 F. Supp. 630, 633 (E.D.Ky. 1967).
See Kansas Uniform Durable Power of Attorney Act, K.S.A. 58-610 et seq. In construing the language of the power of attorney and the trust, the trial court, citing Bank IV, Olathe v. Capitol Fed'l Savings & Loan Ass'n, 250 Kan. 541, 549-550, 828 P.2d 355 (1992), stated that a power of attorney is to be strictly construed. However, the power of attorney is not to be construed so as to defeat the intention of the grantor (throughout the opinion the words "grantor" and "settlor" are used interchangeably); rather, if the language is plain, the power is not to be extended or restrained by implication.
In re Rolater's Estate, 542 P.2d 219, 223 (Okla.App. 1975). Additionally, "[i]n exercising granted powers, the attorney is bound to act for the benefit of his principal avoiding where possible that which is detrimental unless expressly authorized." Id.; Bank IV, Olathe v. Capitol Fed. Sav. Loan Ass'n., 250 Kan. 541, 828 P.2d 355, 361 (1992) ("[A]s a general rule, powers of attorney are to be strictly construed."). The power-of-attorney designating Billie Jo Stafford as Mr. Stafford's attorney-in-fact is broad and grants her authority to perform most actions with regard to Mr. Stafford's property and finances.
Their argument is that Bank IV employees, particularly Kenneth Chick, had access to all of Leitner's account records so that a simple investigation would have alerted Bank IV that Leitner was misappropriating trust account funds. However, § 58-1207 makes it clear that absent actual knowledge Leitner was exceeding his trust powers or improperly exercising them, Bank IV had no duty to investigate Leitner's transactions. Bank IV v. Capitol Federal Sav. Loan Ass'n, 828 P.2d 355, 357-58 (Kan. 1992) (interpreting the "actual knowledge" requirement under Uniform Durable Power of Attorney Act, Kan. Stat Ann. § 58-610 et seq., to entail no investigative duties.) Bank IV's Chick was aware at relevant times that Leitner personally was experiencing financial problems and was in default to Bank IV on personal and business loans.
Geren v. Geren, 29 Kan. App. 2d 565, 569, 29 P.3d 448 (2001), quoting Muller v. Bank of America, 28 Kan. App. 2d 136, 139, 12 P.3d 899 (2000) (A power of attorney is to be strictly construed).See Bank IV, Olathe v. Capital Federal Saving Loan Ass'n, 250 Kan. 541, 549, 828 P.2d 355 (1992). In only a few instances, does the Loan Agreement delineate the Noteholders' duties and obligations to one another or authorizes fewer than all Noteholders to exercise rights for all Noteholders. There are Noteholder actions that can be taken by all of them unanimously, by a majority of them, or by any one of them separately. For instance, section 10.01(a) gives Noteholders with a majority of the principal balance of the notes the right to waive debtor's default.
[¶ 26] We agree in part with the district court regarding the trust's assets at A.G. Edwards. Based upon the plain language of the power of attorney and the trust agreement, Fritz intended for Simonson and Gifford to each separately have "actual authority" to withdraw trust assets, as Fritz had reserved this power for himself as the grantor. See, e.g., Bank IV, Olathe v. Capitol Fed. Sav. Loan Ass'n, 250 Kan. 541, 828 P.2d 355, 364-65 (1992) (holding durable power of attorney conferred broad powers sufficient to authorize savings and loan association to issue checks for depositor's funds to an attorney-in-fact personally at the attorney-infact's request). The district court therefore did not err in concluding Gifford could separately withdraw trust assets at A.G. Edwards as Fritz's attorney-in-fact.
Durable powers of attorney for finances have become popular planning tools across jurisdictions. See Bank IV v. Capitol Fed. Sav. Loan Ass'n, 828 P.2d 355, 358 (Kan. 1992);Guardianship of Smith, 684 N.E.2d 613, 616 (Mass.App.Ct. 1997). The dominant idea behind the Act's original draft was to promote durable powers of attorney as private alternatives to more expensive court-oriented procedures.
. Additionally, "[i]n exercising granted powers, the attorney is bound to act for the benefit of his principal avoiding where possible that which is detrimental unless expressly authorized." Id.; Bank IV, Olathe v. Capitol Fed. Sav. & Loan Ass'n., 250 Kan. 541, 828 P.2d 355, 361 (1992) ("[A]s a general rule, powers of attorney are to be strictly construed."). The power-of-attorney designating Billie Jo Stafford as Mr. Stafford's attorney-in-fact is broad and grants her authority to perform most actions with regard to Mr. Stafford's property and finances.