Community Bankers' Advisor

September - October, 2003 i

 Page 1 


Welcome to the on-line
September - October 2003 issue of the
Community Bankers' Advisor
. . . . . . . . . . .

The Advisor is prepared by attorneys at Olson & Burns, P.C. to provide information pertaining to legal developments affecting the field of banking. In order to accomplish this objective, we welcome any comments our readers have regarding the content and format of this publication. Please address your comments to:

Community Bankers' Advisor
c/o Olson & Burns, P.C.
PO Box 1180
Minot, ND 58702-1180

olsonpc@minotlaw.com

Also, visit our web site at:
www.minotlaw.com

The attorneys at Olson & Burns represent a wide range of clients in the financial and commercial areas. Our attorneys represent more than 30 banks throughout North Dakota.

Independent Community Banks of North Dakota

You Are Asking . . . .

Q: A customer came in with a "Power Of Attorney" that was clearly one of the fill-in-the-blank variety. Is that acceptable, or should we only accept one that was drawn up by an Attorney?
A: We always advise that people consult with an actual attorney before naming an attorney-in-fact, particularly in more complicated situations. Fill-in-the-blank forms cannot discuss the effect of the document and the ramifications of executing one. That said, North Dakota has no requirement that would prohibit you from honoring that form as long as it is properly completed, properly signed, and properly notarized. See N.D.C.C. § 1-04-02
Q: Is it appropriate/permissible to make split deposits or give cash back on checks payable to a sole proprietorship or DBA?
A: There are those lenders who contend that a sole proprietor should be included with corporations or partnerships in their general ban on split deposits or allowing cash back on business accounts. This is cautious, but the ban is probably not necessary here.
If your good customer requests cash back, there is no really good reason not to treat a sole proprietorship account as you would an individual account (which would mean that you use the same set of rules on check cashing and cash back that you would use for your other personal account customers). Legally, in a sole proprietorship, the individual and the business are one person: Jack Frost doing business as Jack's Tree Trimming. There is no separate entity like there is in a corporation or a limited liability company. After establishing the identity of the customer and actually establishing that the business is really a sole proprietorship, a lender is probably not accepting any more risk making a split deposit or allowing cash back for a sole proprietorship D/B/A than it would be for other individuals. We make no comment as to any considerations the IRS would have.

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