No One Else Can Create Your Power of Attorney

Dear Mr. Premack: My sister had a power of attorney drawn up for each of my grandparents. She is named as the agent. Is there a way to change it so both of our names are listed as equal parts of the power of attorney? Our grandparents are both in different stages of dementia. – E.B.

Your letter worries me. A durable power of attorney is an important and powerful legal tool. The person who signs the power of attorney (the principal) is appointing an agent who has broad legal powers to act as a fiduciary for the principal. The principal must be actively involved, must understand the terms of the document, and must intend to grant the authority listed in the power of attorney.

So when you say, “My sister had a power of attorney drawn up,” the cart was put before the horse. It should have been that your grandparents decided to appoint your sister as agent, so they spoke with their attorney to have powers of attorney drawn up. They should be the initiators, not your sister.

You ask if there is a way to change it to list both of you as equal agents. Yes, but your grandparents must understand what they are doing and must be the initiators. If they are competent and they desire to make you and your sister “co-agents” they may do so, but must sign proper new durable powers of attorney for this change to be legally effective.

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, September 10, 2010

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