New Laws: Durable Power of Attorney

This column first appeared in the San Antonio Express-News on September 5, 2017.

2017-09-05(Part 3 in a series.) Regardless of the size of the estate – be it $50,000 or $5,000,000 – everyone should make legal plans to handle a possible future illness or incapacity. If you become incapacitated, you need someone trustworthy to pay your bills, handle your finances, file your taxes, and to carry on your financial existence.

If you do not enact a legal plan in advance, the only alternative may be for a court to appoint a Guardian. This is slow and quite expensive. Many people correctly prefer to sign a Durable Power of Attorney (DPOA) naming an “Agent” to handle their finances. The maker of a DPOA is called the “Principal”.

In House Bill 1974 the 2017 Texas legislature passed a significant update to the Durable Power of Attorney Act, effective as of September 1st.

The new law greatly enhances the utility of Durable Powers of Attorney. If your DPOA is more than a year old, consider updating it to comply with the new law. The benefits of the new law include:

1. The signature of the Principal is now presumed to be legally genuine when properly notarized.

2. A DPOA made in another state is now valid in Texas so long as it complied with the other state’s laws or with federal law regarding a Military Power of Attorney (which are often seen in San Antonio).

3. A photocopy or computer scan of a DPOA now has the same legal effect as the original document. Under prior law, copies were often rejected in favor of the original or of a certified copy. The new law does allow the Principal to limit or eliminate the use of copies by saying so in the original DPOA. However, granting legal validity to copies makes using a DPOA much easier when the bank, broker or other financial institution is far from home.

4. The Principal can choose which state’s law will control the interpretation of the words in the DPOA. If the issue is not addressed, then the law where the Principal resided  or where the DPOA was signed will dominate. This may be useful for individuals who live part time in Texas (snowbirds) and want the law of their home state to apply.

5. Coagents may be appointed by the Principal, who can act independently of each other unless the DPOA requires unanimity.

6. The law now allows the Principal to select a person to appoint additional Successor Agents. For instance, if the Agent is your spouse and the Successor Agent is your daughter, you can give someone power to appoint another Successor Agent to act if your spouse and daughter both die, resign or become incapacitated.

7. If allowed in the DPOA, the Agent may delegate authority to others. For instance, the Agent could hire a bank to help pay bills, or could hire a property manager to handle rent property.

8. If allowed in the DPOA, the Principal can allow the Agent to create a Living Trust, to make gifts, or to handle beneficiary designations. However, if those powers are not expressly granted in the DPOA the Agent does not have those powers.

9. If the Principal makes a new DPOA, any earlier DPOA continues to be valid unless the new DPOA specifically revokes the earlier DPOA. There are other major changes, but the most impactful deals with acceptance of and reliance on a DPOA. In the past, financial institutions could indiscriminately refuse to accept a DPOA. Under the new law, a new set of procedures has been enacted to help assure that your DPOA can be used when the need arises. I’ll focus on those new procedures in the next column.

Paul Premack is a Certified Elder Law Attorney with offices in San Antonio and Seattle, handling Wills and Trusts, Probate, and Business Entity issues. View past legal columns or submit free questions on legal issues via www.TexasEstateandProbate.com or www.Premack.com.

2 thoughts on “New Laws: Durable Power of Attorney

  1. Would a DPOA already in effect and the Principal in no position to alter, be subject to these 9/1/17 implementations regarding co-agents and appointment of alternatives? This DPOA allows for an alternative should the original appointee refuse, etc.

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    • Utilizing the new Coagent and Succession provisions requires a modification to the existing Durable POA, so if the Principal is in no position to alter it then this option is closed. Sounds like the existing Durable POA already names some successor agents, which is effective and valuable. However, with the Principal being unable to act, no additional successors could be appointed.

      Disclaimer: I would have to read the document and interview the Principal to be sure of the facts, so my comments are made subject to my lack of knowledge of this person’s actual circumstances. / Paul Premack

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