Mistakes to avoid with powers of attorney


Dear Mr. Premack: My dad is a Veteran and my parents have gotten their legal estate planning Wills and Durable Powers of Attorney on base for years. My dad now has dementia and the bank refused the Durable Power of Attorney written on base when my mom tried to use it…. because of the timestamp. Does Texas Law require timestamps on the Durable Powers of Attorney? E.C.

Under Texas law, a there are a variety of different types of power of attorney. There are “springing” powers of attorney which only take effect if the principal becomes incapacitated. There are “durable” powers of attorney that take effect on the day the principal signs and continue even if the principal becomes incapacitated. There are regular powers of attorney that take effect on the day the principal signs but stop if the principal becomes incapacitated. There are limited powers of attorney that give authority only for a few particular issues. There are broad powers of attorney that attempt to give the Agent authority to handle all future issues that may arise. And there are time-limited powers of attorney that expire on a specific date set out in the document.

It sounds to me like your father’s JAG-written document fits into several categories. It is a durable, broad, time-limited power of attorney. The JAG office often includes a time-limitation when it writes powers of attorney. The time limit may make perfect sense for a younger person on active duty who may be on temporary duty for a year outside the US. But it makes no sense for a retiree who, as the years pass, has a greater likelihood of incapacity or the need for the assistance from the Agent.

Texas law does not require the time-limitation in a power of attorney, but Texas law allows and enforces a time-limitation when it is written into the document. The JAG, or any attorney assisting an older client, should lean away from using a time-limitation unless there is a specific need of that client which will be met by the time limitation. The effect of a time limitation should always be fully disclosed: if you become incapacitated and your power of attorney expires, no one will have legal authority to assist you.

If your father’s dementia is mild and his doctor feels he could still understand the meaning and the impact of signing a new broad, durable, open-ended power of attorney then he should consult with an experienced local elder law attorney. Going back to the JAG may be cost nothing, but if they do the job incorrectly then he is also getting nothing.

If his dementia is too severe for a new power of attorney, then your mother may need to hire an attorney to start a court-based Guardianship. Guardianship is far more expensive, intrusive, and time consuming. Too bad that saving a few dollars by going to the JAG is now going to cost her far more than it would have cost to go to a local elder lawyer in the first place.

Dear Mr. Premack: A few years ago, I gave power of attorney to a trusted neighbor. Now I am afraid that he may try to use it to take all my assets. Can he modify the power of attorney on his own so there is no fiduciary responsibility and take all my assets? Is this possible and legal? K.T.

Under Texas law, power of attorney can only be given by the principal (you) and can only be modified by the principal (you). Your Agent cannot modify the terms of the power of attorney. Your agent cannot avoid his legal fiduciary duties unless you specifically waived those duties in the original power of attorney. Your agent cannot legally take your assets unless you specifically authorized the agent, in the power of attorney, to give gifts to himself from your assets.

You should talk to the lawyer who wrote the power of attorney for you. You should consider revoking the power of attorney, removing your neighbor as Agent, and informing him that he is removed. Ponder whether there is someone else you trust to appoint as a new Agent, or whether you would like to call on professional asset management from one of the local bank trust departments.

Paul Premack is a Certified Elder Law Attorney, handling Wills and Trusts, Probate, and Elder Law issues. He is licensed to practice law in Texas and Washington. View past legal columns or submit free questions on those legal issues via www.Premack.com.