Effective January 1, 2014, Texas has adopted a new
pre-approved form for its Statutory Durable Power of Attorney, a/k/a the power
of attorney for your financial affairs. All forms must substantially comply
with the new statute in order to remain effective.
Substantial compliance is always a tricky task. In order to
avoid challenges that may be determined in a judge’s discretion, Texas
residents should consider preparing a new statutory durable power of attorney
that closely follows the specific statutory form now contained in Section
752.051 of the Texas Estates Code. We also recommend updating your estate and health
care planning documents – including powers of attorney forms – whenever you
have experienced a significant “life event,” such as the birth or adoption of a
child, marriage, divorce, or the death of a relative or significant other.
Be sure to initial one or more of the options (marked A
though N) on the new form; otherwise, you have not granted your agent any
powers to act on your behalf.
Additionally, if you want to be sure that you have granted
your agent a “general power of attorney” – the ability to perform any and every
type of legally permissible action in your place, as if he or she were you –
you should include specific language to the effect that “this document shall be
construed and interpreted as a general power of attorney and my agent (attorney-in-fact)
shall have the power and authority to perform or undertake any action that I
could perform or undertake as if I were
personally present.”
The former statutory durable power of attorney form (Section
490(a) of the now-replaced Texas Probate Code) contained this language; the new
provision does not.
Because this financial power of attorney is a very powerful
tool - and is also ripe for abuse by your agent under the wrong circumstances -
we highly recommend that you consult with an attorney prior to signing this
legal document, so that you are fully aware of the rights, responsibilities,
and potential liabilities that can occur.
By: Cynthia W. Veidt, cindy@lpvlaw.com