Page 75 - Senior Link Magazine Winter 2017- Online Magazine

HONORING SENIORS

TEXAS MAKES CHANGES

TO ITS STATUTORY DURABLE

POWER OF ATTORNEY

by Lee Franks

he right of a person (the principal) to designate one • the third party reasonably believes that the agent or
or more others (agent or agents) to conduct financial principal has engaged in questionable financial activity,
Ttransactions for him or her, either for convenience or or
because the person requires assistance in managing financial • several other reasons provided by statute.
affairs, provides care givers a critical tool in caring for our
elderly and disabled population. If a person executes a
durable power of attorney and then becomes disabled, due Significantly, a third party may request a certification of
to age-related problems or due to an accident or illness, the power of attorney or an attorney opinion verifying the
the durable power of attorney could mean the difference power of attorney and may refuse to honor the power of
between a smooth transition in control and an expensive attorney if the agent refuses. While an attorney opinion may
and cumbersome guardianship. During the most recent be expensive and hard to come by, a certification, whereby
legislative session, the Texas Legislature made a number the agent provides a sworn or acknowledged statement as
of significant changes to the laws governing the statutory to certain facts verifying the power of attorney, would not
durable power of attorney, effective September 1, 2017. require much additional effort or expense. Given that a
While the Legislature made quite a few significant changes, third party must have a reasonable basis to reject a power of
this article seeks to highlight only a very few. Note that the attorney, and that the refusal to certify the power of attorney
text following may use power of attorney, durable power provides one, expect that of all the changes affecting Texas’
of attorney, or statutory durable power of attorney. In each statutory durable power of attorney requiring a certification
case, the use refers to Texas’ statutory durable power of may soon become routine.
attorney.

As a preliminary and more philosophical matter, no one
is a power of attorney, and the Legislature did not change
this. By executing a statutory durable power of attorney, the
principal shares with one or more agents certain powers that
the agents can use to accomplish often extensive financial
transactions for the principal. The principal does not lose any
of his or her authority by naming one or more agents to act
for the principal. Often one hears, “I am power of attorney
over my mother.” In fact, the person acting for the other is an
agent, and agents serve the principal. The principal merely
shares the principal’s own authority with the agent and can
dismiss the agent for any reason. The power of attorney does 8207 Hudson Ave, Ste D • Lubbock, TX 79423
not grant the agent control over the principal.
(806) 368-8805
The Legislature did address one of the more common
problems facing agents attempting to use a power of attorney fax: (806) 686-0444
– the institution or person or other third party to whom the
agent presents the power of attorney refuses to accept it. A
banker may say, “We do not accept powers of attorney,” or Medicaid Qualification
“We are not going to accept your power of attorney.” The Supplemental Needs Trusts
new provisions require third parties to provide reasonable Lee Franks
grounds for refusing to honor a power of attorney. The Estate Planning
Legislature provided a number of reasons for which a third Guardianship
party might reject a power of attorney, and most of them
make a great deal of sense: Probate

Your Elder Law
• the third party does not provide the services the agent &
wants, Estate Planning Team
• the agent has requested an illegal transaction, Laura Beth Pleasant
• the third party has actual knowledge that the agent’s FPLAWTEAM.COM
authority has been terminated for some reason,

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