This is a short guide to the Durable Power of Attorney.
A. The basic document
At its most basic, the Durable Power of Attorney was a document that allowed a person to delegate certain authority to an agent. It was often used to allow an agent to sign a deed for a principal. Over the years it was expanded to allow an agent to perform more and more services for the principal.
B. The “Super” Power of Attorney
In 2017 a Texas Bar committee persuaded the Legislature to overhaul this document. They turned a fairly simple document into a sprawling mass, giving agents much more power and adding long stretches of advice.
Imagine the scene when an incapacitated person is in the final days of life. The person had a durable power of attorney, so there is an agent, but there is no will. Or maybe the will is out of date. The agent and the family can’t write a will for the dying person. But what if they could? This is the impetus of the Super Power of Attorney.
Under the Super Power of Attorney, the agent is given the power to write an estate plan for the dying person. The drawback is, it’s complicated.
C. Bolstering the Super Power of Attorney
The new document gives so much power to the agent that it’s dangerous. So elaborate explanations are added to inform the principal.
Stern warnings are added to scare the agent into acting right.
There’s also a new Certificate for the agent to sign to convince bankers to accept the power of attorney. Bankers are notoriously recalcitrant, and the law now says they have to accept the power of attorney if there’s a certificate.
D. Choices
You can make choices to tailor the power of attorney to your wishes. You can delete any power that is listed in the document.
The Durable Power of Attorney begins with a list of powers that you can delegate to the agent. These had remained fairly stable. Each item in the list is defined in a section of the Texas Estates Code. In 2017, the most recent power was added to the list: Digital assets and the content of an electronic communication.
If you have any questions about a power, ask me.
Also in 2017, additional powers were made available. Some new choices are listed below. If you have a question about one of these choices, ask me.
E. Specific Authority
2. I grant my agent the following additional powers:
Choose one or more.
- Create, amend, revoke, or terminate an inter vivos trust
- Make a gift, subject to the limitations of Section 751.032 of the Durable Power of Attorney Act (Section 751.032, Estates Code) and any special instructions in this power of attorney
- Create or change rights of survivorship
- Create or change a beneficiary designation
- Authorize another person to exercise the authority granted under this power of attorney”.
F. Compensation
Choose one:
3. My agent is entitled to reimbursement of reasonable expenses incurred on my behalf and to compensation that is reasonable under the circumstances.
3. My agent is entitled to reimbursement of reasonable expenses incurred on my behalf but shall receive no compensation for serving as my agent.
G. Co-Agents
If there are co-agents, choose one:
4. Each of my co-agents may act independently for me.
4. My co-agents may act for me only if the co-agents act jointly.
4. My co-agents may act for me only if a majority of the co-agents act jointly.
H. Disclosure
The powers granted by this document are broad and sweeping. They are explained in the Durable Power of Attorney Act, Subtitle P, Title 2, Estates Code. You are authorizing the person named as your agent (attorney in fact) full legal power and authority to act on your behalf, without any court approval or supervision, by taking any and all actions relating to the indicated transactions. If you have any questions about these powers, consult with me.
This document does not authorize anyone to make medical and other health-care decisions for you.
If you want your agent to have the authority to sign home equity loan documents on your behalf, this power of attorney must be signed by you at the office of the lender, an attorney at law, or a title company.
You should select someone you trust to serve as your agent. Unless you specify otherwise, generally the agent’s authority will continue until:
- you die or revoke the power of attorney;
- your agent resigns, is removed by court order, or is unable to act for you; or
- a guardian is appointed for your estate.
You may wish to designate an alternate agent in the event that your agent is unwilling, unable, or ineligible to act as your agent. Any alternate agent you designate will have the same authority to act for you. Even after you have signed this document, you have the right to take indicated actions for yourself as long as you are able to do so.
You may revoke this power of attorney at any time if you wish to do so.
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