Dear Mr. Premack: My mother named me as agent in her Statutory Durable Power of Attorney in 2003. In 2010 my brother convinced her to name him as agent, and she signed a new Statutory Durable Power of Attorney. He has taken over her financial affairs with the exception of an inherited IRA that only I have information on. My brother has questionable judgment and lives with our mother. Although the rest of the family thinks Mom is incapacitated and thinks she did not understand what she signed, she has not been declared legally incapacitated. My questions: If Mom has not revoked the previous POA, are my brother and I both her legal agents? Must I give my brother information about the IRA, and must he give me what information he has? Can mom revoke her POA’s until a court declares her incapacitated? Thank you. – MP, Dallas
You say that your mother signed statutory durable powers of attorney – the first in 2003, and the second in 2010. The statute which is the basis for durable powers of attorney is found in Chapter XII of the Texas Probate Code. It provides a statutory durable power of attorney form. This raw form complies with the law, but it omits a number of necessary features.
One omission is a statement that signing a new statutory durable power of attorney revokes all prior powers of attorney. If you mother used the raw statutory form, then when she signed the new 2010 power of attorney, she added your brother to the roster of her agents. She did not dismiss you as her agent, nor did she revoke the 2003 powers granted to you.
As a lawyer, I consider that a sloppy omission of a necessary feature. It is just one of many reasons that I never recommend using the raw statutory form. If your mother had indisputable mental capacity, and if she decided to change her agent from you to your brother, and if she thought that the Texas legislature was full of smart people who would think of everything for her, then she might trust the statutory form. In doing so, she would NOT get what she wanted. Had she consulted with an experienced elder law attorney, these shortcomings of the statutory form could have been avoided.
Of course, from your perspective the omission is a good thing. You are still her agent, and so is your brother. That means that you are both fiduciaries for your mother and you are both legally obligated to keep her informed of any actions that you take on her behalf. Whenever either of you acts as her agent, you must always put her best interests as the first and foremost consideration.
Must you give your brother information about the IRA, and must he give you the information he has? A technical twist answers this question. Legally, your mother has the right to demand that you disclose all records and information to her. You are required to disclose within whatever time period she may demand (but if she does not set a time, then within 60 days of the date she makes her demand for disclosure). Here is the twist: if she does not demand disclosure, the law allows “any person designated by the principal… or other personal representative of the principal” to make the demand for her.
As her agents, both you and your brother are her personal representatives. So he can demand records from you (on her behalf) and you can demand them from him (on her behalf). He must comply with any demand you make, and you must comply with any demand he makes for disclosure of your mother’s records.
If this type of exchange begins, she is likely to become aware that you know your power of attorney is still legally valid. She does retain the right to revoke any power of attorney, until a court rules that she is no longer capable of that act. She could, thus, take direct action to revoke your authority. If a court was asked to rule on her legal capacity and decides that she needs a guardian, the court would also rule that all of the powers of attorney are voided. Both agents would then be replaced with a guardian who operates under the supervision of the court.
Paul Premack is a Certified Elder Law Attorney practicing estate planning and probate law in San Antonio.
Original Publication: San Antonio Express News, April 29, 2011