Dear Mr. Premack: I signed a general power of attorney six years ago. I want to know if it will ever expire. Thank you. — BA
To know if it will expire, we have to define some terms. Generically, a “power of attorney” is a written delegation of authority from one person to another, so the second person can take certain actions on behalf of the first person. The creator of a power of attorney – the one who is delegating the authority — is called the “principal”. The person receiving the authority is called the “agent” or the “attorney in fact”.
Powers of attorney should never be taken lightly; if the principal grants authority to a dishonest agent, the damage can be extensive. The agent is always bound by a fiduciary duty to the principal, and there are statutes which define certain abuses of authority as criminal acts. Even so, it is harder to repair an abuse of power than it is to avoid it in the first place.
Powers of attorney can be of several varieties:
A “general” power of attorney (which you refer to in your letter) is one that is written to be very broad, with the intention of giving the agent the widest possible range of actions which he can handle for the principal.
A “limited” power of attorney is one that is specific and narrow, with the intention of giving the agent a limited set of actions which he can handle for the principal.
A “durable” power of attorney can be either general or limited. Durability does not address the range of actions which can be taken; it addresses when the actions can be taken. When a power of attorney is durable, the agent may act for the principal before and after the principal becomes incapacitated. When a power of attorney is not durable, the agent may act for the principal only before the onset of incapacity.
A “springing” power of attorney can also be either general or limited. A springing power of attorney is always durable, because it is effective only after the principal becomes incapacitated. The agent may act only after the principal is incapacitated. If the principal remains capable of acting for himself, the agent has no authority to act.
A “statutory” power of attorney is one that invokes the specific provisions of the Texas Durable Power of Attorney Act, which is part of the Texas Probate Code. A statutory power of attorney has very broad yet specific powers that are standardized by law.
The legislature’s intent was to cover the most typical situations under which a power of attorney is used, but over the years it has become clear that they forgot many vital points. Lawyers who write powers of attorney for estate planning or elder law clients often go beyond the basic statutory powers. For instance, some people need a general durable power of attorney that includes the statutory authorizations but also includes additional authorizations.
Now to your answer: you have a general power of attorney. You have not shown me a copy of the power of attorney, so I don’t know exactly what it says. You do not say it is durable; you do not say it is springing. Thus, it will likely expire the moment you become incapacitated, which is exactly when you need it’s authority to take effect.
Additionally, some powers of attorney contain problematic explicit expiration dates. This is often the case when the document was obtained from the Judge Advocate General’s office for a military retiree. Expiration dates may make sense for a 22 year old being deployed for a year overseas, but it makes little sense for a retiree who may become incapacitated as the years pass. Always consult with an experienced lawyer for the creation and signing of a proper, legal power of attorney.
Paul Premack is a Certified Elder Law Attorney and a Five Star Wealth Manager (Texas Monthly Magazine 2009-2013) practicing estate planning and probate law in San Antonio.
Original Publication: San Antonio Express News, February 26, 2010