Some other estate planning attorneys, including North Carolina Estate Planning Blog, brought the case of Smith v. Bank of America to my attention.   I wish the actions of this national bank were a rare exception.  I find that many of those employed by banks, especially the largest banks, are not sufficiently trained in the legal implications of the accounts they manage.

 I once had a national bank tell a client that he could not access a safe deposit box as personal representative of the boxholder's estate.  The bank would not give my client or I access to their legal department -- it was "against their policy."    I did fax to the bank manager the Colorado probate statute that provided that my client must be allowed access or the bank would be liable.  The bank manager later called my client to say that the legal department had "discovered" that the bank's policy was apparently in violation of Colorado law.  My client scoffed: "Your legal department didn't discover that, my lawyer had to tell you!".  Yet my client wasn't allowed access to the account until the next week because the conclusion of the so-called legal department was reached by a paralegal and there were no attorneys there at the moment!  I still wonder if they even have a legal department and if they ever consult with attorneys when making legal pronouncements.

When your banker tries to tell you you can't do something, don't automatically believe them.  I've had banks decide to freeze access to a client's accounts because someone has alleged the client to be incompetent.  Without proof, opportunity to defend or a court decision, the bank makes its own pronouncement that my client can't access his own money!   The bank's position was that it would not allow access until a court had determined my client to be competent.  So the assumption that my client was competent until proven otherwise in a court of law was thrown out the window.  To add insult to injury, the bank didn't realize (surprise!) that because people are presumed competent, there is no means of starting a court proceeding to find someone competent unless someone actually starts a proceeding alleging incompetence.  That was a convoluted sentence because it's a convoluted idea that essentially means my client would have had to bring a lawsuit against himself to prove he could get at his bank account!

What to do?  Living trusts can be one layer of defense.  Except now I hear that Bank of America won't let clients who have living trust accounts deposit checks made out to the client.  "Just our policy."

So, find a bank whose policies make sense and for whom customer service is not an oxymoron.  Consider a credit union, but ask them first about their policies regarding powers of attorney and living trusts.  There are also some really responsive and reasonable community and regional banks that have better training, less turnover and more common sense than the national ones.  At these smaller institutions you can also get to know real live bodies who will be able to help when a situation arises.  Some good advice I once heard: "Don't bank at the drive-up.  Go inside and get to know your banker.  Then when you need credit or otherwise need help, they'll be more inclined to help you."