Changes to the Texas Statutory Durable Power of Attorney Form

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

Changes to the Texas Medical Power of Attorney Form

Texas has adopted a new pre-approved form for its Medical Power of Attorney, a/k/a the power of attorney for your financial affairs. All forms signed after January 1, 2014, must substantially comply with the new statute in order to be effective.

Luckily, the new form – still located at Section 166.164 of the Texas Health and Safety Code – is substantially similar to the previous versions of this form. And any Medical Power of Attorney form executed before December 31, 2013, will not require a revision in order to remain effective, so long as it complied with the law in effect at the time it was signed.

The primary change in the new Texas Medical Power of Attorney Form relates to its execution. Now, you can sign the form in front of a notary without the need for any witnesses. Alternatively, you can sign the form in front of two witnesses if a notary is unavailable. Section 166.163 of the Texas Health and Safety Code describes the types of persons who may act as witness to a Medical Power of Attorney.

By: Cynthia W. Veidt, cindy@lpvlaw.com

Changes to the “Self Proving” Affidavit for a Texas Will

Texas has now fully adopted the Texas Estates Code, effective January 1, 2014. This “new” set of statutes is a recodification of the former Texas Probate Code, Texas Trust Act, and a number of related statutes contained in the Texas Health & Safety Code and other statutes.

One of the most important changes involves the “execution ceremony” for a person’s last will and testament.  Previously, at least one witness was required to appear in court, usually in person, to “prove up” the authenticity of your will after your death, unless you (as testator) and the witnesses to your will also signed a separate attachment called a “self proving affidavit” before a notary public.

This process led to some confusion, because the testator and the witnesses had to sign the will in multiple places, and an “overlooked signature” would cause procedural problems for your executor.

Now, Section 251.1045 of the Texas Estates Code contains a combination “attestation and self-proving” clause, so that the testator and witnesses need only sign a Texas will in one location.  In order to be effective, the language in the will must be in “substantial compliance” with the specific language set out in this statute. We recommend copying this clause exactly in order to avoid any potential complications. 

Also, this single signature option is only effective for wills executed on or after January 1, 2014; please check your current will to make sure that it fully complies with the previous statutes concerning “self proving” language and signatures.

Because the language of your will – particularly the failure to include certain language – can affect the type of probate proceedings required to administer your estate in Texas, we strongly recommend that you contact an attorney well-versed in Texas estate planning and probate law to assist you in preparing your last will and other estate planning documents. Self-prepared wills or wills created with multi-state software programs often fail to take full advantage of Texas statutes that can help reduce the amount of cost and time required to finalize your financial affairs once you have passed away. 

By: Cynthia W. Veidt, cindy@lpvlaw.com

The New Texas Estates Code is Here

Effective January 1, 2014, Texas has fully adopted the Texas Estates Code.  This “new” set of statutes is a recodification of the former Texas Probate Code, Texas Trust Act, and a number of related statutes contained in the Texas Health & Safety Code and other statutes.

Although most of the provisions remain unchanged – save for a new citation – you should make sure to check your estate planning forms to ensure that they remain effective and comply with any new requirements.  In particular, the new Estates Code has made some changes to the Statutory Durable Power of Attorney form (the power of attorney for financial affairs).

We also recommend updating your estate 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.

By: Cynthia W. Veidt, cindy@lpvlaw.com