“In a manner familiar to anyone who had ever packed a car for a family trip, genial confusion gave way to impatience, then furious ultimatums, then ill-advised snap decisions.” Neal Stephenson, bestselling author
And there you sit, looking at a document titled Durable Power of Attorney and wondering what you can do because you just found out your dad has been sending $5,000 money orders – lots of them – to his online girlfriend Sexy Sheila to pay for her car repair and emergency surgery and a plane ticket to the States so she can marry him, and now it looks like you will need to swoop in and preserve what is left of his wealth.
Didn’t take you long to move from confusion to snap decision, did it?
Let me help you out. The Durable Power of Attorney is the document that your dad signed, before his present confusion, authorizing an agent – you- to manage his financial affairs. If you are in luck, it was prepared by a competent attorney pursuant to Texas law and was signed by your dad in front of a notary.
The power of attorney is a complex document. You should review it in steps.
Find Out if There’s a Co-Agent Listed
Look at the part that names agents. If you are listed first, then you get to serve. If your dad named someone to serve with you as a co-agent, then gird up and prepare to enter Hell. Co-agents can cause all sorts of problems, including exposing you to civil and criminal liability. You should talk to a lawyer before agreeing to serve with a co-agent.
Find Out When the Power of Attorney Becomes Effective
Find the language regarding when the power of attorney becomes effective. If it says words similar to “this power of attorney Is not affected by subsequent disability or incapacity of the principal,” then your authority as an agent starts now. If it says “this power of attorney becomes effective on the disability or incapacity of the principal,” then you have been given a “springing” power and you have a big problem. You have no authority to act until you can prove, to the satisfaction of a third party like a bank, that your dad is disabled or incapacitated. Springing powers of attorney are tough to enforce.
Look for the Itemized Powers
Review the powers that are itemized in the power of attorney. You can exercise only those powers that are listed. A power of attorney that gives you “general” authority conveys the authority described in the Estates Code, Chapter 752. You will need to look up the statute for the full description.
Review for Hot Powers
A power of attorney could also give you “hot” powers. Those must be expressly granted in the document. These include setting up a revocable trust, making gifts, managing rights of survivorship or beneficiary designations, and delegating your authority under the power of attorney.
Research Your Power of Attorney Duties
Once you have finished reviewing the document, you should research your duties under the law. These are deceptively simple.
You have a fiduciary duty to your dad. You must put his interests above your own and inform him of your actions. Your actions as an agent will be binding on your dad. You do not have authority to act against your dad’s wishes; he retains the right to make his own decisions. Your dad can fire you as an agent at any time.
Can you use your powers under the Durable Power of Attorney to block the Sexy Sheila scam? Maybe. Check with an attorney before you take your first action. Ill-advised snap decisions can backfire.
Did You Recently Become Power of Attorney? Hammerle Finley Can Help
If you were recently named power of attorney and need legal advice, schedule a consultation with one of our experienced attorneys to discuss your options.
Attorney Virginia Hammerle, of Hammerle Finley Law Firm, is in her fifth decade of law practice. She is Board Certified in Civil Trial Law and an Accredited Estate Planner. Reach her at legaltalktexas@hammerle.com. This column does not constitute legal advice.
